CARGO42, INC. – TERMS OF SERVICE AGREEMENT
This Agreement sets forth the terms for use of the Service. By accessing or using the Service, you are accepting this Agreement, on behalf of yourself or the company, entity or organization that you represent, and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement, on behalf of yourself or the company, entity or organization that you represent. You may not access or use the Service or accept this Agreement if you are not at least 18 years old. Use of the Service is conditioned on your agreement to all of the terms and conditions contained in the Agreement, including the policies and terms linked to or otherwise referenced in the Agreement, all of which are hereby incorporated into the Agreement. If you do not so agree, you should decline this Agreement, in which case you are prohibited from accessing or using the Service.
1. DEFINED TERMS
1.1. “Motor Carrier” or “Carrier”
Motor Carrier, or Carrier, means a for-hire motor carrier or a private motor carrier with authority issued by the federal government or any state government to haul freight for third parties. The term includes a Carrier’s drivers, whether employees or independent contractors, as well as a Carrier’s agents, officers and representatives. A Carrier who accesses or uses the Service is an independent contractor and remains solely responsible for screening, selecting, hiring, training, supervising, managing, assigning, and dispatching drivers. A Carrier is solely responsible for the inspection and maintenance of motor vehicle equipment and accessories. Carrier is solely responsible for its own actions, omissions, training, oversight, compliance with regulatory and safety requirements, and all management of Carrier’s equipment, services, drivers, employees, contractors, agents and servants. A Carrier maintains sole control over the methods and results by which it performs freight transportation services, and retains the sole duty to provide, maintain, manage and control the equipment, personnel, and expertise required to transport a Shipper’s freight. Cargo42 is not an agent for any Carrier. No Carrier is ever an agent for Cargo42. The provisions of Section 3 apply to Carriers.
Cargo42 is not a Motor Carrier. No interpretation of written or oral remarks in any agreement or document shall be construed to imply Cargo42 is a Motor Carrier, or that Cargo42 is subject to the regulatory or legal requirements or liabilities of a Motor Carrier.
Cargo42, Inc. is a federally licensed property broker[A1] under authority granted by the U.S. Department of Transportation (“DOT”), and the Federal Motor Carrier Safety Administration (“FMCSA”). Cargo42. Inc. does business as Cargo42 for purposes of the Service provided in this Agreement. Cargo42’s sole duty is to arrange for the transportation of freight by a Motor Carrier that is authorized to operate by the federal government or by a state government. As a broker, Cargo42 does not take possession, custody or control of any freight. Cargo42 does not assume any possessory rights or obligations, nor assume any financial responsibility whatsoever, for freight, including loss and damage liability.
Cargo42 offers a platform to connect Shippers and Carriers, but does not provide shipping services or act in any way as a Carrier. It is up to the Carrier to provide shipping services, which may be scheduled through the use of the Service. Cargo42 has no responsibility for any shipping services provided to Shippers by such Carriers.
A Shipper owns, possesses, or otherwise controls the rights to tangible property or freight. The Shipper is a person or entity who seeks the transportation of freight by a licensed Motor Carrier. Cargo42 is not an agent for the Shipper. The provisions of Section 4 apply to Shippers.
A User is any individual or company who accesses or uses the Service. This individual may be a Carrier or a Shipper.
1.5. “User Content”
User Content means any and all information, data, and other content that a User submits to, or uses with, the Service. User Content includes the information provided in a Shipment request or acceptance.
2. DESCRIPTION OF SERVICES
2.1. Shipment Requests
Shipper may submit a Shipment through the Service. Shipper will provide the following information as part of requesting a Shipment:
(a) The origin and destination addresses for the Shipment;
(b) The requested dates and times for pickup and drop-off of the Shipment;
(c) A description of the freight or cargo being transported as part of the Shipment (including weight);
(d) The specific equipment requirements; and
(e) Any other relevant information about the Shipment.
Cargo42 is not responsible for any Shipment terms entered into between Shipper and Carrier. Once the Shipment is accepted for posting by Cargo42, the details of the Shipment are posted to the Service. Shippers may cancel a Shipment at any time prior to it being accepted by a Carrier. A Carrier may view a list of the Shipments available to it at any time and accept a Shipment through the Service. Once a Carrier accepts a Shipment, that Carrier will be assigned to perform transportation services related to the Shipment. Upon a Carrier’s acceptance, Cargo42 will notify Shipper that the Shipment has been accepted. Cargo42 does not guarantee that a Shipment will be accepted by a Carrier.
2.2. Completion of the Shipment
Once a Shipment is completed, the Carrier will upload to the Service: (1) the applicable bill of lading (“Bill of Lading”); or (2) a proof of delivery signed by the authorized recipient (“Proof of Delivery”). Carrier will send any questions or concerns regarding the Bill of Lading to the applicable Shipper. Any routing instructions, or similar information, contained on the Site or within the Mobile App are for informational purposes only and are not to be considered instructional.
3. CARRIER RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES
3.1. Carrier Responsibilities
Carrier agrees that it has completed the onboarding process with Cargo42 and has provided Cargo42: (i) a copy of FMCSA Operating Authority, (ii) a completed W-9 form, (iii) DOT number (if applicable) and (iv) a copy of your insurance.
Carrier shall procure and maintain, at its sole cost and expense, with reputable and financially responsible insurance underwriters maintaining a rating of B+ or higher, acceptable to Cargo42, the following insurance coverages:
(a) Automobile Liability insurance to include any automobile, or all owned, non-owned and hired automobiles, covering bodily injury (including injury resulting in death) and loss of or damage to property in an amount not less than $1,000,000 per incident for tractor-trailers, $750,000 per incident for straight trucks and $500,000 per incident for cargo vans.
(b) Risk Cargo Liability insurance in an amount not less than $100,000 per incident for drayage and tractor-trailers, $50,000 per incident for straight trucks, and $25,000 per incident for cargo vans, and shall not contain any exclusions for employee theft or dishonesty.
(c) Any other insurance that may be required by any applicable federal, state or local laws, rules, regulations or ordinances.
Carrier shall provide to Cargo42 certificates of insurance and upon request, shall provide copies of all policies and endorsements. “Cargo42, Inc.” will be listed as a certificate holder. Further, Carrier will ensure that Cargo42 is provided notice of cancellation or modification of any insurance required under this agreement at least 30 days in advance of any cancellation or modification of the required insurance.
Carrier shall not re-broker, co-broker, subcontract, assign, or cause or permit any other person or entity to perform any of Carrier’s obligations hereunder, or cause or permit any Shipment tendered hereunder to be transported by any other third-party carrier, or any other substitute mode of transportation, without the express written consent of Cargo42.
3.4. DOT Safety Rating
Carrier hereby represents and warrants that its current safety rating issued by the DOT is not less than “Satisfactory”. In the event Carrier is issued a safety rating of less than “Satisfactory” at any time during the term of this Agreement, Carrier agrees to notify Cargo42 immediately in the manner prescribed in the Notices provision contained herein. Cargo42 shall have the right to terminate this Agreement immediately upon any such issuance of a safety rating less than “Satisfactory”.
3.5. Compliance With Laws
Carrier represents and warrants that it is duly registered with FMCSA as a for-hire motor carrier of property in interstate and foreign commerce pursuant to 49 U.S.C. § 13902. With respect to the transportation services provided pursuant to this Agreement, Carrier shall comply with all federal, state and local laws, rules, regulations and ordinances, including but not limited to all rules and regulations promulgated by the Surface Transportation Board, DOT and all other Federal and State agencies and departments having jurisdiction over the transportation services to be performed by Carrier. Carrier shall defend, indemnify and hold Cargo42 and its customers harmless from and against any and all fines, penalties, judgments, liabilities, expenses and costs of any nature resulting from Carrier’s failure to comply with all such laws, rules, regulations and ordinances.
Carrier represents and warrants that it shall perform all transportation services pursuant to this Agreement with equipment that is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations, including but not limited to those of the DOT.
3.7. Independent Contractor
This Agreement does not make Carrier an agent, legal representative, joint venture, or partner of Cargo42 for any purpose. It is understood by Carrier that Carrier is to act as an independent contractor and is in no way authorized to make any contract, warranty or representation on behalf of Cargo42, or to create any obligation express or implied on behalf of Cargo42. It is expressly agreed and understood by Carrier that Carrier shall not be considered under this Agreement as having any employment status with Cargo42, or as being entitled to any plans, distributions, or benefits extended by Cargo42 to its employees.
During the term of this TOS, and for a period of one (1) year from its termination, Carrier agrees that it will neither initiate nor accept any direct or indirect business relationship with any Shipper that was first introduced to Carrier by Cargo42, or in connection with the use of the Service, and will rely on Cargo42, as Broker, in any dealings with a Shipper first introduced by Cargo42, or in connection with the use of the Service, to Carrier unless otherwise agreed by the parties in writing. A Carrier’s legal obligations in this regard extends to instances where the Shipper contacts the Carrier and seeks to establish a business relationship that does not include Cargo42.
If Carrier accepts any direct or indirect business relationship with any Shipper that was first introduced to Carrier by Cargo42 in violation of this TOS, Carrier shall pay to Cargo42 within thirty (30) days of each such violation an amount equal to twenty percent (20%) of all revenues invoiced by Carrier to the solicited Shipper.
3.9. Cargo Liability for Freight Loss or Damage
Except as otherwise provided herein, the Carrier’s liability for cargo loss or damage shall be governed by the provisions of the Carmack Amendment, 49 U.S.C. § 14706et seq . Carrier shall be liable to Cargo42, and its customers, for any and all property damage, cargo loss, damages or delay occurring while such cargo is in the possession or under the control of Carrier, or resulting from Carrier’s performance or failure to perform the service undertaken by Carrier under the terms of this Agreement. Carrier further agrees to defend, indemnify, and hold Cargo42 and its customers harmless from any and all claims, loss, damage, expenses, or liability, including reasonable attorney fees, arising out of Carrier’s performance of services, or any violation by Carrier of applicable law or terms of this Agreement. Any attempt by Carrier to limit its liability or amend this Agreement by provisions contained in any bill of lading, delivery receipt or tariff shall be deemed null and void. Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from this liability.
Claims for loss of or damage to cargo shall be submitted and processed in accordance with 49 C.F.R. Part 370 as in effect on the effective date of this Agreement. Carrier shall acknowledge receipt of such claims within thirty (30) days, and shall settle all claims within sixty (60) days of receipt.
4. SHIPPER RESPONSIBILITIES
4.1. Representations and Warranties
Shippers hereby represent and warrant as follows:
(a) Shippers will not use the Service in furtherance of the transportation of freight or cargo that is illegal, dangerous, hazardous, harmful, unsafe, offensive or objectionable;
(b) Shippers will not use the Service to ship electronics, perishable goods or hazardous materials;
(c) Shippers own the shipped items, freight or cargo, or have the necessary rights to ship such items;
(d) Shippers use the Service to transport freight or cargo at their own risk and agree that Cargo42 will not be liable for the loss of any shipped items;
(e) Shippers are solely responsible for obtaining any insurance to cover any anticipated losses of freight or cargo; and
(f) Requested pick-up and delivery dates and hours will not require the Carrier to violate hours of service regulations under applicable law.
4.2. Claims for Loss or Damage
The time limits for filing of loss and damage claims, and the time limits for filing any action at law for disallowance of claims, shall be governed by the provisions of 49 U.S.C. §14706. Shipper must file any claim for cargo loss or damage against Carrier with Cargo42 within the time specified in Carrier’s standard terms of service or tariff, and in no event will such claim be allowed if filed later than nine (9) months after the date of such loss, shortage or damage. To be valid, any claim for loss, damage, delay must meet the three (3) conditions set forth in 49 C.F.R. §370.3 (b):
(a) It must be filed with Cargo42 and against Carrier in writing; and
(b) It must include a clear demand for payment, and a specified dollar amount of the claim; and
(c) It must identify the shipment sufficiently to allow Carrier to conduct an investigation.
Shipper agrees that it will neither initiate nor accept any direct or indirect business relationship with any Carrier that was first introduced to Shipper by Cargo42, or in connection with the use of the Service, and will rely on Cargo42, as Broker, in any dealings with a Carrier first introduced by Cargo42, or in connection with the use of the Service, to Shipper. A Shipper’s legal obligations in this regard extends to instances where the Carrier contacts the Shipper and seeks to establish a business relationship that does not include Cargo42.
4.4. Freight Description and Disclosures
Shipper shall disclose to Cargo42 all information reasonably necessary for Cargo42 to arrange transportation in compliance with applicable regulatory, legal and industry standards. Shipper shall also be responsible and liable for providing accurate description of cargo including without limitation commodity type, dimensions and weight, and any special handling requirements.
4.5. Freighttitle--tertiary Securement
Shipper shall bear the sole responsibility to review and accept or deny the Carrier’s trailer for cleanliness, odor, leaks, dirt or other conditions that may be unacceptable to Shipper. If a trailer or any equipment is unacceptable, it is Shipper’s obligation to prohibit loading the trailer. In such event, Shipper shall notify Cargo42 immediately and request alternative arrangements. Unless otherwise agreed in writing, or otherwise specified by law or regulation, it is Shipper’s responsibility to develop adequate blocking, bracing and packaging that facilitates the safe handling and stowing of freight and prevents damage during transit.
Shipper acknowledges that Cargo42 will never be in possession of any freight or cargo being transported in connection with use of the Service, nor will Cargo42 be responsible or have any role in the securement of freight or cargo for transportation.
4.6. Shipping Documents
Shipper’s insertion of “Cargo42” on a receipt of goods, bill of lading, manifest, or any other shipping document, shall be understood by the parties to be for the Shipper’s convenience, or due to Shipper’s oversight only, and shall not operate to alter Cargo42’s status as a Broker, nor the Carrier’s status as the responsible Carrier. The terms and conditions set forth in any such shipping document used by a Carrier or a Shipper shall not supersede, alter, or modify any term of this Agreement or add any liability or responsibility to Cargo42.
5. CARRIER SELECTION
Cargo42 continues to evaluate certain Carriers at certain intervals, as set forth by Cargo42’s internal risk management and Carrier selection policies, which may be amended from time to time with or without notice to Carriers or Shippers. Cargo42 represents that it is not a governmental agency and therefore cannot and does not in any way guarantee the relative fitness, compliance record of, or current or future safety performance of, any Carrier or its drivers. Cargo42 is not responsible in any way for the acts and/or omissions of Carriers or their drivers. The FMCSA, an agency of DOT, is responsible for licensing, monitoring and enforcing safety and regulatory compliance for interstate Carriers. FMCSA, together with other federal, state and local law enforcement agencies, bear sole responsibility for determining the fitness, including the safety fitness, of all authorized carriers, and for enforcing all applicable laws and regulations, including without limitation, those concerning the maintenance and operation of carrier equipment, driver training, licensing, and fitness, hazardous materials, and hours of service.
6. PAYMENT TERMS
For each Shipment, Shipper will pay Cargo42 the fees listed to Shipper upon acceptance of the applicable Shipment on the Service (“Shipment Fee”), as well as any additional charges Shipper may incur related to the completion of the Shipment. These charges include, but are not limited to, detention time beyond 30 minutes at each location for trucks 26 feet or less in length and 120 minutes at each location for trucks over 26 feet in length, overnight storage due to Shipper not being available or able to receive the Shipment from Carrier, and any differences between the actual Shipment and the description of the Shipment created on the Service. Cargo42 may change pricing for the Service (from time to time in its sole discretion) by updating the Site and Mobile App and without any additional notice to Users.
When a Shipment Fee is processed, Cargo42 shall display a completed charge screen. This is Shipper’s electronic receipt. Shipper should print or save this electronic receipt for its records. Shipper represents and warrants that Shipper has the right to use any credit card(s), checks, or other payment means provided to Cargo42 and used to initiate any transaction of the Shipment Fee. All information that Shipper provides to Cargo42’s third party payment processor or Cargo42 must be accurate, current and complete. Shipper agrees to immediately notify Cargo42 of any change in Shipper’s billing address or the credit card or bank account used for payment hereunder.
When a Shipment Fee is processed, Cargo42 shall notify Shipper and make the completed charge visible to Shipper on the Service. Shipper agrees not to circumvent payments for scheduled or completed Shipments in any way. All payment will be in United States dollars. Any amount that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event that Cargo42 is unable to bill Shipper due to insufficient funds, Shipper shall be liable for all costs and expenses incurred by Cargo42 in connection with collection of the Shipment Fee, including costs and expenses of a third party collection agency. Shipment Fees are non-refundable.
For each Shipment, Cargo42 will pay Carrier the fees listed to Carrier when Carrier accepted the Shipment (“Carrier Fee”), as well as additional fees Carrier may earn related to the completion of the Shipment. These fees include, but are not limited to, detention time beyond 120 minutes at each location for trucks over 26 feet in length, 30 minutes at each location for trucks 26 feet or less in length, overnight storage due to shipper not being available or able to receive the Shipment from the Carrier, and any difference in fees resulting from the actual Shipment being different from the description of the Shipment created on the Service.
6.3. General Payment Terms
You agree that you are responsible for the collection and/or payment of all taxes, which you may be liable for in any jurisdiction arising from your use of the Service. Cargo42 is not responsible for collecting, reporting, paying, or remitting to you any such taxes.
In order to use certain features of the Service, you must register for an account with Cargo42 (“Account”) and provide certain information as prompted by the registration and Shipment creation form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by contacting Cargo42 or following the instructions on the Service. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. You agree to immediately notify Cargo42 of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Cargo42 is not liable for any loss or damage arising from your failure to comply with the above requirements.
Subject to the terms of this Agreement, Cargo42 grants you a non-transferable, non- exclusive, license to use the Site for your internal business use during the term of this Agreement.
7.3. Mobile App
Subject to the terms of this Agreement, Cargo42 grants you a non- transferable, non-exclusive, license to install and use the Mobile App, in executable object code format only, solely on your own handheld mobile device and for your internal business use during the term of this Agreement.
The rights granted to you in this Agreement are subject to the following restrictions:
(a) You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service;
(b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service;
(c) You shall not access the Service in order to build a similar or competitive service; and
(d) Except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
7.5. Limited Support
Users may contact Cargo42’s technical support center for any support- related issues arising from the use of the Service by following the instructions on the Service.
Cargo42, Inc. owns intellectual property rights in and to the Service, including but not limited to the Site, Mobile App, including all related software and servers, in and to our trademarks, service marks, trade names, logos, domain names, taglines and trade dress (collectively, the “Marks”). Users acknowledge and agree that Cargo42, Inc. owns all right, title, and interest in and to the Service, including all intellectual property rights therein. Users understand and agree that without a written license agreement with Cargo42, Inc., Users may not make any use of the Marks. Except as expressly granted in this Agreement, all rights, title and interest in and to the Service, and in and to the Marks are reserved by Cargo42, Inc.
9. MODIFICATION OF THE SERVICE
Cargo42 reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Cargo42 will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
10. LIMITATIONS ON USE OF THE SERVICE
You agree not to use the Service to upload, transmit, display, or distribute any User Content that: (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way.
In addition, you agree not to use the Service to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Service; or (g) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service.
Cargo42 reserves the right to review any User Content, investigate, and /or take appropriate action against you in its sole discretion, including removing or modifying User Content, terminating your Account, and/or reporting you to law enforcement authorities.
11. USER CONTENT
11.1. User Content
You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate any provision of this Agreement. For the avoidance of doubt, User Content may include third party content you submit. You agree not to submit third party content unless you have the consent of the applicable third party owner of such content. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Cargo42. You acknowledge and agree that Cargo42 is not responsible for any User Content and makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and assumes no responsibility for any User Content.
Users hereby grant, and represent and warrant that they have the right to grant, to Cargo42 an irrevocable, nonexclusive, royalty-free and fully paid, sublicenseable, worldwide license, to use User Content, solely for the purposes of including User Content in the Service. All rights in and to the User Content not expressly granted to Cargo42 in this Agreement are reserved by Users.
11.3. Anonymous Data
Cargo42 may create anonymous data records (“Anonymous Data”) from your User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to you. Cargo42 may use and disclose Anonymous Data for any purpose, including improving the Service.
Cargo42 may share your User Content (a) with third party service providers; (b) if another company acquires Cargo42; and/or (c) to comply with relevant laws, to respond to subpoenas or warrants or assist in preventing any violation or potential violation of the law or this Agreement.
12. THIRD PARTY SITES
The Service might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Cargo42 and Cargo42 is not responsible for any Third Party Sites. Cargo42 does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
13.1. Indemnification of Cargo42
You agree to defend, indemnify and hold Cargo42 (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (i) use of the Service, (ii) User Content, (iii) interaction with any other User, (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) your shipment contents (if you are a Shipper) or your shipment services (if you are a Carrier). Cargo42 reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Cargo42. Cargo42 will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13.2. Indemnification of Shipper
Carrier agrees to defend, indemnify and hold Shipper (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by the negligence or other intentional conduct of the Carrier or its employees or agents.
13.3 Indemnification of Carrier
Shipper agrees to defend, indemnify and hold Carrier (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by the negligence or other intentional conduct of the Shipper or its employees or agents.
14. CHOICE OF LAW
This Agreement shall be deemed executed in the State of Florida and shall be interpreted, in the event of a dispute arising hereunder, under the laws of Florida.
15. DISPUTE RESOLUTION
In the event of a dispute arising out of this Agreement, a party’s recourse shall be exclusively settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one arbitrator from the American Arbitration Association (“AAA”). Arbitration proceedings shall be conducted under the rules of the AAA, as agreed by the parties, or by Cargo42 solely where no agreement is reached.
Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the AAA. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
Arbitration proceedings shall be conducted in Broward County, Florida, or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in Broward County, Florida for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
The parties may also proceed in Small Claims Court in Broward County, Florida to resolve any dispute where reasonably expected damages are less than $5,000. Unless preempted or controlled by federal law and regulations, this agreement shall be interpreted and enforced according to the laws of the State of Florida. Shipper and Carrier waive any objection to jurisdiction or venue in Washington.
16. TERM OF AGREEMENT
This Agreement will remain in full force and effect while you use the Service. Cargo42 may at any time terminate this Agreement in its sole discretion if (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) Cargo42 is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) Cargo42 has elected to discontinue the Service; or (d) for your poor performance as a Shipper or Carrier in Cargo42’s sole discretion. Upon termination of this Agreement, your Account and right to access and use the Service will terminate immediately.
17. GENERAL PROVISIONS
17.1. Changes to Agreement
This Agreement is subject to occasional revision by Cargo42. In the event of any material changes made to the Agreement, Cargo42 will notify you by electronic mail, or other means of written communication, before your next use of the changes on the Service. Any changes to this agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. These changes will be effective immediately for new Users of the Service. Continued use of the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17.2. Entire Agreement
This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Cargo42’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Cargo42’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
All notices as required by any of the terms and conditions of this Agreement shall be deemed given with the notices prepared, adequately addressed to the e-mail [email protected]
17.5. Publication of Information
Cargo42 has your permission to identify you as a customer of Cargo42 or user of our Services and to reproduce your name and logo on the Site and in any other marketing materials.
If you provide Cargo42 any feedback, suggestions, or other information or ideas regarding the Service (“Feedback”), you hereby assign to Cargo42 all rights in the Feedback and agree that Cargo42 has the right to use such Feedback and related information in any manner it deems appropriate. Cargo42 will treat any Feedback you provide as non-confidential and non-proprietary. You agree that you will not submit to Cargo42 any information or ideas that you consider to be confidential or proprietary.
In the event that the operation of any portion of this Agreement results in a violation of any law, or if any provision herein is determined by a court of competent jurisdiction to be invalid or unenforceable, Shipper, Cargo42 and Carrier agree that such portion or provision shall be severable and that the remaining provisions herein shall continue in full force and effect. The terms and conditions set forth herein shall survive the termination for any reason of the business relationship between Shipper, Cargo42 and Carrier.
Cargo42 expressly disclaims any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, or non- infringement. Cargo42 makes no warranty that the Service: (a) will meet your requirements or expectations; (b) will be available on an uninterrupted, timely, secure, or error-free basis; (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe; or (d) result in any revenue, profits, or cost reduction. The Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Cargo42 is not responsible for any delays, delivery failures or other damages resulting from such problems.