Last updated: September 3, 2019
THESE TERMS OF SERVICE AS REVISED BY CARGOMATIC IN ITS SOLE DISCRETION FROM TIME TO TIME (THIS “AGREEMENT”) SET FORTH THE LEGALLY BINDING TERMS FOR YOUR 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.
IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1 SERVICE DESCRIPTION
1.1. General. Cargomatic helps to connect Shippers and Carriers for the shipment of local freight and cargo by providing a platform whereby Shippers can post details of desired shipment requests and Carriers can accept such shipment requests. “User” means any user of the Service, and may be a Carrier or a Shipper, or a representative of either. To the extent you are a Carrier, the provisions in this Agreement regarding Carriers apply to you. To the extent you are a Shipper, the provisions in this Agreement regarding Shippers apply to you. To the extent you are a User, the provisions in this Agreement regarding Users apply to you. For the avoidance of doubt, Cargomatic provides the platform for posting and accepting Shipments and the billing service described in Section 5. Please carefully read the disclaimer in Section 11 for more information about your responsibilities.
1.2. Shipment Requests. Shipper may post a request for a shipment (“Shipment”) through the Service. Without limitation, Shipper will provide origin and destination addresses, the requested date and pickup time of the Shipment, a description of the items being shipped (including weight) and any other relevant information about the Shipment. Cargomatic is not responsible for any Shipment terms. Once the Shipment is accepted for posting by Cargomatic, the details of the Shipment are posted to the Service. After a certain period of time, the Shipment will be viewable to all Carriers in the immediate area, though Cargomatic may from time to time, and in order to meet Shippers’ specific needs, release shipments to certain carriers before posting it to the Service. Shippers may cancel a Shipment at any time prior to it being accepted by a Carrier. Carriers may view a list of the available Shipments in their immediate area at any time and accept a Shipment through the Service. The first Carrier to accept a Shipment will be assigned the Shipment. Once accepted by a Carrier, Cargomatic will notify Shipper that the Shipment has been accepted. Shipper and Carrier will receive each other’s phone number. Each Shipper and Carrier is responsible for providing their own phones for use with the Service. Cargomatic may also, from time to time as the circumstances require, connect Shippers and Carriers outside of the Mobile App. Cargomatic does not guarantee that a Shipment will be accepted by a Carrier. If a Shipment is not accepted by a Carrier, Cargomatic will notify the Shipper that no Carrier is available and that the Shipper should try posting the Shipment again.
1.3. Completing the Shipment. Shipper must issue and provide the Carrier a bill of lading (“Bill of Lading”) for each Shipment. If Shipper shows Cargomatic as the carrier or shipper, such designation shall be for the convenience of Shipper only. The Bill of Lading must contain, at minimum, the names and addresses of the Carrier and the Shipper, the origin and destination addresses, the requested pickup and delivery dates and times, description of the items being shipped (including weight) and other relevant terms and conditions. Once the Shipment has been completed, Carrier will promptly (but in no event more than 4 hours after the Shipment has been completed with respect to a less-than-truckload Shipment and 48 hours after any other type of Shipment has been completed) upload to the Service a proof of delivery signed by the authorized recipient (“Proof of Delivery”) and all required back-up documentation for any accessorial charges. Shipper, not Cargomatic, issues the Bill of Lading. Carrier will direct any questions or concerns regarding the Bill of Lading to the applicable Shipper. Routing instructions are for informational purposes only.
2. CARRIER TERMS, REPRESENTATIONS AND WARRANTIES
2.1. Carrier Minimal Requirements. As a Carrier, you hereby represent, warrant and covenant that:
(a) you hold all required authorities, permits and approvals to render the motor carrier transportation service required for any accepted Shipment, and that you do not have a U.S. Department of Transportation Safety Rating, of Unsatisfactory or Conditional;
(b) will obtain and maintain at all times while rendering service with respect to any Shipment insurance evidencing policy limits in accordance with applicable law, and in no event less than the amounts set forth below:
i. Cargo Liability of $100,000 per incident for dray and tractor-trailers, $50,000 per incident for straight trucks, and $25,000 per incident for cargo vans.
ii. Automobile Liability of $1,000,000 per incident for tractor-trailers, $750,000 per incident for straight trucks and $500,000 per incident for cargo vans.
2.2. Insurance. As a Carrier, you hereby further represent, warrant and covenant that:
(a) You carry General Liability insurance in a minimum coverage amount of $1,000,000.
(b) You carry workers compensation insurance or equivalent as required by applicable law, and if you do not carry workers compensation insurance, it is because you are specifically exempted from a legal requirement to carry it.
(c) You have procured insurance from companies maintaining a rating of B+ or higher.
(d) You will list Cargomatic or its designated representative as a certificate holder on your Auto Liability and Cargo Liability insurance policies and, upon request, provide copies of all policies and endorsements.
(e) You will ensure that Cargomatic 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. Without limitation, you agree to indemnify and defend Cargomatic for any failure to maintain the above mentioned insurance or to properly notify Cargomatic of such failure.
(f) Your Automobile Liability insurance covers all automobiles you will use to perform services under this Agreement.
(g) Your Automobile Liability insurance includes an MCS-90 endorsement if required by your state or specific carrier authority.
(h) Your insurance covers contractual liability assumed under these Terms of Service.
(i) You will not accept shipments for commodities or perform any services which are excluded by your insurance policies.
2.3. Compliance with Laws and Regulations. As a Carrier, you hereby represent, warrant and covenant that:
(a) You are duly authorized to provide shipping services as a contract carrier of commodities and desire to provide shipping services for Shipments.
(b) You currently, and shall during all periods you transport shipments through the Service, have all applicable licenses, permits, registrations, approvals and authority under state, local and federal law to provide the shipping services subject to this Agreement, and such authority shall cover the commodities, geographical scope, and special Shipper instructions or requirements related to all transportation services you provide.
(c) You will comply with all applicable local, state and federal laws related to the provision of shipping services, including without limitation those of the U.S. Department of Transportation.
(d) To the extent you handle intermodal shipments, you have executed and are in compliance with a current Uniform Intermodal Interchange Agreement (“UIIA”), and will provide a copy of the UIIA to Cargomatic upon request
(e) all equipment used is in full compliance with the regulations of the California Air Resources Board including, but not limited to, the truck and bus regulation, drayage truck regulation, transport refrigeration unit regulation and greenhouse gas regulation.
2.4. Safety. As a Carrier, you hereby represent, warrant and covenant that:
(a) You will not at any time accept shipments if your rating is Unsatisfactory or Conditional with the United States Department of Transportation (“DOT”) or if you receive a negative safety evaluation from any state or provincial authority with jurisdiction over your operations.
(b) You will immediately notify Cargomatic if your safety rating is Unsatisfactory or Conditional, or if you otherwise a receive a negative safety evaluation from a state or provincial authority with jurisdiction over your operations.
2.5. Equipment. With respect to the equipment you use to perform shipping services under these Terms of Service, you hereby represent, warrant and covenant that:
(a) You will, at your sole cost and expense, furnish all equipment required for the performance of shipping services under these Terms of Service, and pay all expenses related to the use or operation and maintenance of such equipment (including any fines, penalties or fees).
(b) You will provide equipment that is in compliance with all applicable governmental regulatory standards, testing, requirements, licensing, titling, permits and registration, and sufficient in quality and quantity to meet the transportation needs of each shipment you agree to transport.
(c) All motor vehicle equipment you use for the transportation of food grade products will comply with the requirements of The Sanitary Food Transportation Act. Without limiting the foregoing, all equipment used in transportation of cargo, regardless of type, will be clean, dry, free of harmful or offensive odor, insect and rodent free, and never have been used for transportation of waste or refuse.
2.6. Employees And Services. With respect to your employees who carry out shipping services pursuant to these Terms of Service, you hereby represent, warrant and covenant that:
(a) You will employ and be solely responsible for all personnel employed or contracted by you to provide shipping services.
(b) You will pay your personnel’s wages and insurance where applicable, including, but not limited to, workers’ compensation insurance.
(c) You will ensure your employees’ hours are in compliance with regulations under applicable law.
(d) You have sole responsibility for any and all acts and omissions of your drivers, and such drivers’ compliance with all applicable laws and regulations.
(e) You are solely responsible for the interviewing, hiring, training, disciplining, and termination of your drivers and other employees.
(f) You shall utilize only drivers and other operating personnel who are licensed to perform all services for which they are engaged.
(g) You shall transport all shipments accepted via the Service on vehicles operating pursuant to your for-hire motor carrier operating authority and not broker out, or otherwise allow any third party to transport any shipments from the Service to any third party.
(h) You shall maintain documented driver validation procedures, recent driver logs and visit records, and proof of identification checks.
(i) You shall ensure that your drivers conduct documented physical inspections upon receipt and release of cargo, note discrepancies before sign-off, maintain OS&D procedures, and have and implement written container security procedures.
(j) You shall ensure that, to the extent you pick up empty containers through the Service, you will pick up such empty containers no more than two (2) days (excluding Sundays and holidays) after Cargomatic has notified you of such empty containers, and understand that Cargomatic is not liable for any per diem charges after this two-day period.
(K) You acknowledge and agree that by accepting for transport food subject to the Food Safety Modernization Act and the implementing regulations of the Food and Drug Administration (“FDA”) at 21 C.F.R. 1.900 et. seq., (i) Carrier will comply with any and all applicable laws, rules and regulations governing handling or transportation of such food; (ii) Carrier will ensure that its equipment is maintained such that transportation of such food in Carrier’s equipment will not result in contamination or adulteration of food; (iii) Carrier and its personnel will comply with all instructions provided to it by Shipper, including any received via the Service, regarding the handling of food; and (iv) all Carrier personnel will be trained in accordance with the regulations of the FDA. Without limiting the foregoing, if Shipper has requested controlled temperature transportation, Carrier shall ensure that transporting equipment is pre-cooled to the Shipper’s requested temperature range and, unless alternative instructions are provided by the Shipper, shall maintain the ability to record temperature at all times during transit and to provide a temperature log to Shipper upon request.
2.7. Shipper Instructions. In the event the Shipper gives specific instructions regarding the proper loading, handling and shipping of freight, such terms shall govern, and you, as a Carrier, shall comply therewith.
2.8. Payment and Remedies. As a Carrier, you hereby agree that:
(a) You will look solely to Cargomatic for any payment of freight and other charges owing under this Agreement, and agree that your sole recourse in the event of nonpayment shall be against Cargomatic, and not under any circumstances against Shipper, consignee or any of their customers. You waive any and all claims you may have against Cargomatic’s customers for payment of charges for services you render hereunder. This undertaking shall survive the termination of this Agreement.
(b) You shall not claim, and hereby waive any right to claim, any lien on any Shipment.
2.9. Non-solicit. You shall not provide transportation for any Shipper, other than through the Service, for which you first provided transportation through the Service at any time while you have account with Cargomatic and for 12 months after the termination of your account with Cargomatic. Should you breach the provisions of this section, you will be liable for, and pay to Cargomatic, 30% of the revenue derived by you in violation of this provision. You agree to allow Cargomatic to review all books and records of your business necessary for Cargomatic to ensure compliance with the obligations assumed in this provision.
2.10. Acceptance of Liability. As a Carrier, you hereby represent, warrant and covenant that:
(a) You are solely responsible for any and all liability which results or is alleged as a result of the services you provide under this Agreement, including, but not limited to, property damage, cargo loss, damages or delay, personal injury and death (including, but not limited to, liabilities related to your own property and employees). Your liability in all cases shall be as a motor carrier. Your liability is for the full amount of any such loss, damage, cost or other liabilities, irrespective of your insurance limits.
(b) You agree to defend, indemnify, hold harmless and/or make whole Cargomatic, Shippers and consignees (and their officers, employees, and agents) (collectively, the “Shipper Indemnities”), with respect to any and all claims, demands, loss, damage, expenses (including costs and attorney’s fees), or liability (collectively “Claims”) due to or arising out of your or your drivers’ or other agents’: (i) use of the Service; (ii) use of or access to User Content; (iii) interaction with any other User; (iv) violation of any of the terms of this Agreement; (v) driver salaries, wage, overtime and meal/rest period claims, local, state and federal payroll and other withholding taxes, unemployment insurance, pensions, workers’ compensation, social security and related protections, and any expenses related to equipment and fuel; (vi) violation of applicable laws or regulations; or (vii) performance of transportation services using the Service. The foregoing obligations shall not apply to the benefit of any individual Shipper Indemnity to the extent a court of appropriate jurisdiction has determined such Shipper Indemnity to be responsible for a Claim. This indemnification applies regardless of any provisions in separate contracts between Cargomatic and third parties. You also hereby waive any claims or demands by you against the Shipper Indemnities related to any costs, losses, expenses or liability arising from the above-listed actions by you or your agents.
(c) Without limiting any of the foregoing provisions, you specifically agree to defend, indemnify, hold harmless and/or make whole the Shipper Indemnities for Claims due to or arising out of your, or your drivers’ or other agents’:
(i) Failure to use commercially reasonable efforts to pick up accepted Shipments at the designated point of origin within as soon as is practicable, or use commercially reasonable efforts to proceed to the point of destination specified or perform timely, efficient and reliable pick-up and delivery of all shipments.
(ii) Failure to obtain from the Shipper a Bill of Lading (containing, at minimum, the names and addresses of you and the Shipper, the origin and destination addresses, the requested pickup and delivery dates and times, description of the items being shipped (including weight), and any special shipping instructions or freight protection requirements) or to confirm that the cargo matches the description and quantities of the cargo in the Bill of Lading, and is in good condition at the time of pick-up. Your acceptance of any shipment, or your receiving signature on the Bill of Lading, shall be conclusive that the number of pieces shown on the Bill of Lading is correct and that lading is in apparent good condition.
(iii) Improper or unsafe loading or unloading of any shipment, or, where you are not required to load, failure to determine, to the extent you are able to ascertain through ordinary inspection, that each shipment was properly loaded.
(iv) Shipment of any loads in violation of applicable weight, axle, or other applicable laws and regulations, or Shipper’s specific instructions.
(v) Suspension of service at any time after loaded dispatch, or delay of service by stop over for any reason that would leave your equipment and the cargo unattended without adequate security as a prudent Carrier would or as is otherwise required under your insurance policies.
(vi) Acceptance of any shipments for which you cannot comply with applicable temperature requirements, and any damage as a result of failure to comply with such requirements.
(vii) Use of equipment that has been used for the transportation of any waste of any kind, garbage, or any other commodity which results in the contamination of other shipments.
(viii) Failure to inspect and/or investigate if a shipment contains hazardous material, acceptance of hazardous material, and violation of any applicable laws and regulations related to the transport of hazardous material.
(ix) Disengagement or detachment of your power unit from the trailer, container/chassis, flatbed or other equipment at any time unless emergency or exceptional circumstances require it.
(x) Failure to perform the services under this Agreement in a good and workmanlike manner in accordance with standards of the trade.
(xi) Failure to promptly upload to the Service the Proof of Delivery and send the original to Cargomatic via postal mail.
(xii) Performance of the services under this Agreement with equipment other than that under your own authority, or co-brokering, trip leasing or otherwise subcontracting the transportation or handling of any shipment tendered hereunder to any other motor carrier or any other substitute mode of transportation, and any acts and omissions of any subcontractors as a result thereof.
(xiii) To the extent you handle containers, failure to ensure your procedures for container security are in accordance with industry standard.
(xiv) Failure to utilize equipment that is in good and safe operating condition, clean, insect and rodent free, odor free, mold free, sealed from water and/or moisture damage, safe, properly maintained and hazard-free.
(xv) To the extent you handle intermodal shipments, failure to execute and comply with a current UIIA.
(d) Cargomatic 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 Cargomatic. Cargomatic will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
3. SHIPPER TERMS, REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties. Unless otherwise agreed in a separate written agreement between Shipper and Cargomatic, if you are a Shipper, you hereby represent, warrant and covenant that:
(a) You own the shipped items or have the necessary rights to ship such items and are authorized to, and do, bind the owner to the provisions of this Agreement.
(b) You use the Service to ship items at your own risk through the motor carriers that use the Service and, except to the limited extent expressly set forth in this Agreement, agree that Cargomatic will have no liability for any shipped items or any claims, demands, loss or damages related thereto.
(c) You are solely responsible for obtaining any insurance to cover any anticipated losses.
(d) You are solely responsible for any and all liability, which results or is alleged as a result of such shipped items, including, but not limited to, property damage, personal injury and death.
(e) If you are loading, bracing and securing your goods, you understand that you are liable for any claims, loss, or damage as a result of your doing so improperly or unsafely. You understand that Cargomatic is in no way responsible for the securing, lading, packaging, or compliance with shipping instructions for your shipments.
(f) You understand that Cargomatic is not a motor carrier, and as such, is not liable or responsible to you or the recipient of cargo for any cargo shipped under this Agreement.
(g) If you broker shipments through Cargomatic under this Agreement, you are duly authorized as a property broker with the FMCSA and comply in all respects with MAP-21.
(h) You understand that tracking the locations of your shipments through the Service does not guarantee that such shipments will be delivered to you at the time specified.
(i) When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), Shipper shall be solely responsible for posting, and shall post, any and all handling obligations necessary for the safe and sanitary handling of such food. If requesting transportation of cargo requiring controlled temperature transportation (regardless of whether subject to FDA regulation), Shipper will post the required temperature ranges and acknowledges and agrees that the Carrier’s obligations with respect to verifying temperature will be limited to the following: (i) pre-cooling equipment to the requested temperature range; (ii) allowing the loader and receiver to take temperatures at the time of loading and unloading respectively; and (iii) advising of any excursion from requested temperature ranges that arise during transit.
3.2. Non-solicit. Other than pursuant to the Service, you shall not tender, directly or indirectly, cargo to any Carrier to which you first tendered cargo pursuant the Service at any time while your account with Cargomatic remains active, or for 12 months after your account expires or is terminated. Should you breach the provisions of this section, you will be liable for, and pay to Cargomatic, 30% of the amount paid by you to a Carrier in violation of this provision. You agree to allow Cargomatic to review all books and records of your business necessary for Cargomatic to ensure compliance with the obligations assumed in this provision.
3.3. Prohibited Items. Shippers shall not use the Service to ship the below items and waives any and all liability of the Carrier and Cargomatic with respect to any loss of or damage to any of the following:
(a) Contraband or items that are illegal, dangerous, radioactive, harmful, unsafe, offensive or objectionable;
(b) Bullion, precious metals, precious metal objects, gold, silver, platinum, precious or semi-precious stones (including but not limited to diamonds, emeralds, sapphires and rubies), and precious jewelry which includes jewelry made from precious metals and stones;
(c) Money, securities, accounts, bills, currency, food stamps, lottery tickets, notes, bank notes, coins, bonds, negotiable instruments or evidences of debt, passports, tickets, documents, manuscripts, records, or other valuable papers;
(d) Tobacco products and processed tobacco;
(e) Bottled spirits;
(f) Valuable works of art which includes antiques, paintings, sculptures, tapestries, collectibles or other objects for display; or
(h) Bloodstock and live animals including cattle or poultry.
3.4. Shipper Indemnification. You agree to defend, indemnify, hold harmless and/or make whole Cargomatic (and its officers, employees, and agents) (each, an “Carrier Indemnity”) with respect to any and all Claims due to or arising out of your or your agents’: (a) use of the Service; (b) use of or access to User Content; (c) interaction with any other User; (d) violation of this Agreement; (e) violation of applicable laws or regulations; or (f) your shipment contents. Cargomatic 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. The foregoing obligations shall not apply to the extent a court of appropriate jurisdiction has determined any Claim to have been caused by the negligence or intentional misconduct of Cargomatic. You agree not to settle any matter without the prior written consent of Cargomatic. Cargomatic will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. This indemnification with respect to Cargomatic applies regardless of any provisions in separate contracts between Cargomatic and third parties. You also hereby waive any claims or demands by you against Cargomatic related to any costs, loss, expenses or liability arising from the above-listed actions by you or your agents.
4. CARGO CLAIMS
4.1. Carrier Liability. (a) Carrier agrees to assume full liability for the prompt, safe transportation of all shipments under this Agreement, and agrees to be responsible for all loss, damage, delay, destruction, theft or liability of whatever nature arising from the transportation services hereunder, or from Carrier’s failure to perform the services, whether occurring while the shipment is in the custody or control of the Carrier or in the custody or control of any other party to whom Carrier may entrust the shipment. Carrier’s liability to BrokerCargomatic, Shipper and/or any involved consignor or consignee, shall be the invoice value of the goods transported, without limitation.
(b) Bills of Lading or receipts issued by Carrier, or signatures thereon, shall not constitute Cargomatic’s written acceptance of Carrier’s liability limitation or other changes in the terms and conditions. Similarly, Carrier’s liability shall not be limited in any way by limitations or exclusions of coverage in its insurance policies. In the event of a conflict with the terms on bills of lading and this Agreement, including specifically any terms related to limitations of liability of Carrier, the terms of this Agreement shall govern. Carrier and Shipper agree that pursuant to 49 U.S.C. §14101(b) the Carrier expressly waives all rights and remedies under Title 49 of the U.S. Code that conflict with these Terms of Service.
4.2. Cargomatic Limitation of Liability. Shipper understands and agrees that Carrier is primarily liable for cargo loss and damage and Cargomatic is not liable for the acts or omissions of Carrier. Unless a separate written contract with a customer signed by an officer of both Cargomatic and such customer provides otherwise, Cargomatic’s sole liability with respect to loss or damage, including due to unreasonable delay, to cargo shall be to the extent that such loss or damage, is caused by the negligence or intentional misconduct of Cargomatic. Cargomatic’s liability for such cargo loss or damage shall in no event exceed the lesser of: (i) the cost to repair or replace the goods in question; (ii) $1.00 per lb. per package; and (iii) $50,000 per occurrence. The sole liability of Cargomatic, and the sole recovery of the Shipper or owner against Cargomatic, with respect to loss, damage or delay shall be as set forth in this provision. Without limiting the foregoing, in no event is Cargomatic responsible for the acts or omissions of any third party, including any Carrier, including, but not limited to, a Carrier’s denial of a valid claim or failure to comply with Shipper’s instructions.
4.3. Claim Submissions and Settlement. (a) In the event of loss or damage, Shipper or any consignor or consignee shall endeavor to submit a claim to Cargomatic within ninety (90) days of the incident, and in no event later than six (6) months of the incident. Cargomatic shall make every attempt to facilitate the resolution of the claim with the Carrier. Cargomatic hereby does not assume terms and conditions set forth in Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement. In addition, unless agreed in a separate written contract, Shipper is not entitled to offset the amount of any claims, which remain unpaid or unresolved against amounts owed by Shipper to Cargomatic. Shipper shall not assert a claim for cargo loss or damage, and neither Cargomatic nor the Carrier shall be liable for cargo loss or damage, in instances where there is no affirmative proof of loss or damage to cargo.
(b) Carriers shall settle claims within sixty (60) days of Cargomatic’s receipt of all necessary claims documentation. Carrier hereby assumes all other terms and conditions set forth in Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement. In addition, Cargomatic is entitled to offset the amount of any claims, which remain unpaid or unresolved after such 60-day period against amounts owing from Cargomatic to Carrier hereunder. Carrier will be notified in writing prior to taking any action to offset. Carrier shall not dispose of damaged or rejected product without the prior written consent of Cargomatic.
5. PAYMENT TERMS
5.1. Shipper Payment and Charges.
(a) For each Shipment, Shipper is obligated to pay Cargomatic within 15 days upon receipt of Cargomatic’s invoice, which may be provided electronically via the Service, based on the fees listed to Shipper when the applicable Shipment was accepted for posting on the Service (“Shipment Fee”).
(b) Shipper is also obligated to pay:
(i) Any applicable accessorial charges, including, but not limited to, potential wait charges in the event the Carrier waits at the pick-up location one or more hours after the agreed-upon pick-up time;
(ii) Any additional charges resulting from the Shipper (which, for purposes of this sub-section, shall include Shipper’s agents or third parties with whom Shipper is in a contractual relationship, excluding the Carrier) loading the shipments in violation of, or otherwise violating, applicable laws and regulations;
(iii) For pallets exceeding 48 inches by 40 inches, Shipper shall be charged and pay the price corresponding to two pallets. Similarly, for pallets exceeding 96 inches by 80 inches, Shipper shall be charged and pay the price corresponding to three pallets;
(iv) Any accessorial charges for which back-documentation is provided with Cargomatic’s invoice; and
(v) Any other additional charges mutually agreed upon in writing by the Shipper and Cargomatic.
(c) If you are a Shipper and you have provided a valid credit card, YOU HEREBY AUTHORIZE CARGOMATIC TO BILL YOUR CREDIT CARD FOR THE SHIPMENT FEE IMMEDIATELY AFTER COMPLETION OF THE SHIPMENT AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED.
(d) If you are a Shipper and you have provided Cargomatic with your bank account information instead of a credit card, YOU HEREBY AUTHORIZE CARGOMATIC TO PROCESS A CHECK FROM YOUR BANK ACCOUNT FOR THE SHIPMENT FEE IMMEDIATELY AFTER COMPLETION OF THE SHIPMENT AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. To do this, your check is converted into an electronic check and presented immediately via the Automated Clearing House (“ACH”) system. In the event a check is subsequently returned for non-sufficient funds, you agree that we may add a returned check fee of $25.00 to the amount of the returned check and take any action available to us at law or in equity to collect such full amount. YOU AGREE TO PAY THE RETURNED CHECK FEE, THE INITIAL AMOUNT AND ANY COLLECTION CHARGES INCURRED BY US.
(e) If you wish to dispute a charge by mail or telephone please contact Cargomatic at firstname.lastname@example.org. In the event that Cargomatic charges any convenience fee for making a payment via a credit card or electronic check, these fees will be stated at the time of payment before you finalize your charge. In the event of an unauthorized charge using a credit card or electronic check, please consult your bank’s rules regarding refunds and reversals.
(f) Cargomatic complies with all legal requirements of your state’s applicable laws regarding providing refunds for unauthorized charges. When you make a charge, Cargomatic shall display a completed charge screen. This is your electronic receipt. You should print or save this electronic receipt for your records. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), CHECKS, OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to our third party payment processor or us must be accurate, current and complete. You agree to immediately notify Cargomatic of any change in your billing address or the credit card or bank account used for payment hereunder.
5.2. Carrier Remittance.
(a) For each Shipment, Cargomatic will pay Carrier the fees listed to Carrier when Carrier accepted the Shipment (“Carrier Fee”), subject to the conditions set forth in this Section 5.2.
(b) Carrier shall not be entitled to any additional charges other than the Carrier Fee, except in the case of any additional charges, including but not limited to applicable accessorial rates, agreed upon in writing by the Carrier and Cargomatic prior to the Carrier providing the services giving rise to such charges and prior to the inclusion of any such charges on Cargomatic invoices (“Additional Charges”). Carrier shall not be entitled to payment for any additional or accessorial charges not supported by back-up documentation.
(c) Carrier agrees that Carrier is entitled to the Carrier Fee and any Additional Charges only after completion of the Shipment and Cargomatic’s receipt of the Proof of Delivery and back-up documentation in accordance with this Agreement, including the timing requirements of deliver of such Proof of Delivery set forth in Section 1.3 of this Agreement, and that the Carrier Fee and any Additional Charges will be payable to Carrier thirty (30) days thereafter with respect to any drayage Shipment and fifteen (15) days thereafter for all other Shipments. In the event that Carrier fails to provide to Cargomatic the Proof of Delivery or back-up documentation for a Shipment in compliance with this Agreement, including in accordance with Section 1.3, Carrier shall not be entitled to, and hereby waives any right to, payment relating to such Shipment, unless Carrier is actually paid by Shipper for such Shipment, and then in such case, net of any discount applied, or penalties or fees charged, by the Shipper.
(d) Notwithstanding the foregoing, if the authorized recipient indicates on the Proof of Delivery or otherwise that the Shipment has shortages, or has been damaged, lost, delayed, not completed or otherwise files a claim regarding the Shipment and Shipper notifies Cargomatic of this within a reasonable time after the Shipment (but in no case longer than nine (9) months after completion of the Shipment), Cargomatic shall have the right to withhold or offset payment of any Carrier Fee due to the Carrier until such problem with the Shipment or claim has been settled. Likewise, if the Carrier has applied accessorial or other additional charges without complying with the provisions of Section 5.2(b) of this Agreement, Cargomatic shall have the right to withhold payment of such charges or offset such charges against future invoices. Carrier shall not withhold any shipments as a means of obtaining payment for past or current charges to Cargomatic, and Carrier waives any liens on shipments transported through the Service. The only rights that Carrier has to receive any amounts from Cargomatic are set forth in this 5.2.
5.3. General Payment Terms.
(a) Fees are inclusive of all fuel costs and charges. Fees are based on standard 48”x40”x60” pallet dimensions and other sizes are subject to additional charges. Cargomatic 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 you.
(b) You agree to use the Service to pay for any Shipments booked through the Service and not to circumvent payments for scheduled or completed Shipments in any way. All payment will be in US dollars. 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. Cargomatic is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes, which may be levied in respect of a transaction contemplated by this Agreement. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event that Cargomatic is unable to bill Shippers due to insufficient funds, Shipper shall be liable for all costs and expenses incurred by Cargomatic in connection with collection of the Shipper Fee, including costs and expenses of a third party collection agency. Shipment Fees are non-refundable.
6.1. Accounts. In order to use certain features of the Service, you must register for an account with Cargomatic (“Account”) and provide certain information as prompted by the registration form. Shippers must provide a valid credit card and billing address or ACH information. Carriers must provide valid license information. 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 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. Each Account may only be used to access the Service during one (1) concurrent login session. You agree to immediately notify Cargomatic of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Cargomatic cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
6.2. Site. Subject to the terms of this Agreement, Cargomatic grants you a non-transferable, nonexclusive, license to use the Site for your internal business use during the term of this Agreement.
6.3. Mobile App. Subject to the terms of this Agreement, Cargomatic grants you a nontransferable, 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.
6.4. Certain Restrictions. 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. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof.
6.5. Limited Support. Users may contact Cargomatic’s technical support center for any support related issues arising from the use of the Service by following the instructions on the Service.
6.6. App Stores. You acknowledge and agree that the availability of the Mobile App is dependent on the third party from which you received the Mobile App (“App Store”), e.g., the Apple App Store or Google Play. You acknowledge that this Agreement is between you and Cargomatic and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
7.1. Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service are owned by Cargomatic or Cargomatic’s licensors. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Cargomatic and its suppliers reserve all rights not granted in this Agreement.
7.2. Modification. Cargomatic reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Cargomatic will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
7.3. Feedback. If you provide Cargomatic any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Service (“Feedback”), you hereby assign to Cargomatic all rights in the Feedback and agree that Cargomatic shall have the right to use such Feedback and related information in any manner it deems appropriate. Without limiting the foregoing, this assignment of rights applies to any testimonials you provide, and you hereby also grant Cargomatic the right to use your name in connection with sharing such testimonials with the public. Cargomatic will treat any Feedback you provide to Cargomatic as non-confidential and non-proprietary. You agree that you will not submit to Cargomatic any information or ideas that you consider to be confidential or proprietary. If you agree to participate in any case studies, you agree that information you provide in connection with the case study is deemed Feedback and that Cargomatic may use your name in connection with such Feedback.
8. USER CONTENT
8.1. 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. 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 the Acceptable Use Policy (defined below). 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 Cargomatic. Because you alone are responsible for your User Content (and not Cargomatic), you may be exposed to liability if, for example, your User Content violates the Acceptable Use Policy. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content.
8.3. Creation of Anonymous Data. We 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. We may use and disclose Anonymous Data for any purpose, including improving the Service.
9. ACCEPTABLE USE POLICY
The following sets forth Cargomatic’s “Acceptable Use Policy”:
9.1. You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (a) that 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; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
9.2. 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.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 10, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
10. TERM AND TERMINATION
10.1. Subject to this Section, this Agreement will remain in full force and effect while you use the Service. Cargomatic may at any time terminate this Agreement with you in its sole discretion if (a) you have breached any provision of this Agreement, the applicable SOP or Work Order (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) Cargomatic is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or (c) Cargomatic has elected to discontinue the Service as described in Section 7.2. Upon termination of this Agreement, your Account and right to access and use the Service will terminate immediately. Cargomatic will not have any liability whatsoever to you for any termination of the Service, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 6.4, Section 7 through and inclusive of Section 16.
11. DISCLAIMERS AND RELEASE
11.1. THE SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE 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. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
11.2. CARGOMATIC OFFERS A PLATFORM TO CONNECT SHIPPERS AND CARRIERS, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SHIPPING SERVICES OR ACT IN ANY WAY AS A CARRIER, COURIER, OR SHIPPING PROVIDER. IT IS UP TO THE THIRD PARTY CARRIER TO PROVIDE SHIPPING SERVICES, WHICH MAY BE SCHEDULED THROUGH THE USE OF THE SERVICE. CARGOMATIC HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO SHIPPERS BY SUCH THIRD PARTY CARRIERS. CARGOMATIC SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF CARRIER OR SHIPPER FOR ANY REASON. CARRIERS SHALL NOT BE DEEDED TO BE A SUBCONTRACTOR OR EMPLOYEE OF CARGOMATIC FOR ANY REASON. ANY DISPUTE SHIPPERS HAVE WITH ANY CARRIER OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN THE SHIPPER ANY SUCH THIRD PARTY.
11.3. DRIVING WHILE USING PHONES IS DANGEROUS AND AGAINST THE LAW. DO NOT USE THE MOBILE APP WHILE DRIVING. IF YOU USE THE MOBILE APP WHILE DRIVING, YOU DO SO AT YOUR OWN RISK.
11.4. WE MAKE NO WARRANTY REGARDING THE SUITABILITY, LEGALITY, REGULATORY COMPLIANCE, QUALITY OR ABILITY OF ANY CARRIERS, SHIPPERS, SHIPPED ITEMS AND SHIPPING SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE. BY USING THE SERVICE, YOU OR YOUR SHIPMENTS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE. YOU USE THE SERVICE AT YOUR OWN RISK. YOUR INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN YOU AND SUCH USER OR THIRD PARTY. YOU AGREE THAT CARGOMATIC WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER OR THIRD PARTY, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED.
11.5. YOU HEREBY WAIVE AND RELEASE CARGOMATIC (AND OUR SUPPLIERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), ARISING FROM YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES EXCEPT TO THE EXTENT, IF ANY, THAT LIABILITY HAS OTHERWISE BEEN EXPRESSLY ASSUMED IN THIS AGREEMENT. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
12. LIMITATION ON LIABILITY
12.1. IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY PERSONAL INJURY OR LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE, INCLUDING WITHOUT LIMITATION, USING THE SERVICE IN VIOLATION OF TRAFFIC OR SAFETY LAWS, OR INABILITY TO USE THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT AS PROVIDED IN SECTION 4.2, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID CARGOMATIC IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
12.2. THE INFORMATION PROVIDED BY THE SERVICE IS NOT INTENDED TO REPLACE INFORMATION PRESENTED ON THE ROAD. IN THE EVENT THAT INFORMATION PRESENTED ON THE ROAD, INCLUDING WITHOUT LIMITATION, TRAFFIC LIGHTS AND TRAFFIC SIGNS, INSTRUCTS DIFFERENTLY THAN THE SERVICE, YOU MUST NOT RELY ON THE SERVICE.
13. THIRD PARTY SITES & ADS
The Service might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Cargomatic and Cargomatic is not responsible for any Third Party Sites & Ads. Cargomatic provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
14. COPYRIGHT POLICY
14.1. Cargomatic respects the intellectual property of others and asks that Users of our Service do the same. In connection with the Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our Users is, through the use of the Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. – 512(c)) must be provided to our designated Copyright Agent: 1. your physical or electronic signature; 2. identification of the copyrighted work(s) that you claim to have been infringed; 3. identification of the material on our services that you claim is infringing and that you request us to remove; 4. sufficient information to permit us to locate such material; 5. your address, telephone number, and e-mail address; 6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and 7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C.-512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
15. APPLE APP STORE ADDITIONAL TERMS AND CONDITIONS
The following additional terms and conditions apply to you if you are using a Mobile App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 15, the more restrictive or conflicting terms and conditions in this Section 15 apply, but solely with respect to Mobile Apps from the Apple App Store.
15.1. Acknowledgement: Cargomatic and you acknowledge that this Agreement is concluded between Cargomatic and you only, and not with Apple, and Cargomatic, not Apple, is solely responsible for the Mobile App and the content thereof. To the extent this Agreement provides for usage rules for the Mobile App that are less restrictive than the Usage Rules set forth for the Mobile App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
15.2. Scope of License: The license granted to you for the Mobile App is limited to a nontransferable license to use the Mobile App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
15.3. Maintenance and Support: Cargomatic is solely responsible for providing any maintenance and support services with respect to the Mobile App, as specified in this Agreement (if any), or as required under applicable law. Cargomatic and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.
15.4. Warranty: Cargomatic is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Mobile App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Cargomatic’s sole responsibility.
15.5. Product Claims: Cargomatic and you acknowledge that Cargomatic, not Apple, is responsible for addressing any claims of you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Cargomatic’s liability to you beyond what is permitted by applicable law.
15.6. Intellectual Property Rights: Cargomatic and you acknowledge that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, as between Cargomatic and Apple, Cargomatic, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
15.7. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
15.8. Developer Name and Address: Developer Name and Address: Cargomatic’s contact information for any end-user questions, complaints or claims with respect to the Mobile App is set forth in Section 16.12.
15.9. Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the Mobile App.
15.10. Third Party Beneficiary: Cargomatic and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
16.1. This Agreement is periodically reviewed, modified and enhanced as necessary. Please revisit the Terms of Service periodically to stay aware of any changes thereto. If we modify the Terms of Service, we will make the relevant updates available through the Service. Cargomatic will endeavor to notify you of these changes by email, but will not be liable for any failure to do so. Amendments will be effective upon Cargomatic’s posting of such updated terms. Continued use of the Service following such posting shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions, as amended. If you do not understand any of the terms herein, or have questions or other issues related to your use of Cargomatic, you may inquire regarding the same via email at email@example.com.
16.2. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrarily of the controversy, dispute, demand, count, claim, or cause of action) between you and the Cargomatic and our employees, agents, successors, or assigns, regarding or relating to these the Service or this Agreement, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS- WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(c) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(d) With the exception of subparts (1) and (2) in the paragraph 16.2(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 16.2(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California.
(e) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided us with written notice prior to the date of termination.
(f) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(g) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Cargomatic and our employees, agents, successors, or assigns, regarding or relating to the Service or this Agreement, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision shall be governed by the Federal Arbitration Act.
16.3. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party.
16.4. Entire Agreement. This Agreement, including but not limited to any applicable Accessorial Rates, SOP, and/or Work Order incorporated by reference herein, constitutes the entire agreement between you and us regarding the use of the Service. Our 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.
16.5. Independent Contractor. Your relationship to Cargomatic is that of an independent contractor, and neither party is an agent, employee or partner of the other. You assume complete responsibility for all state and federal taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation services rendered hereunder. You are not, nor will you be deemed to be, an agent, legal representative, joint venture, franchisor, franchisee, or legal partner of Cargomatic for any purpose. You will not be entitled to enter into any contracts, make any representations or warranties in the name of, or accept any obligations whatsoever on behalf of Cargomatic.
16.6. Assignment. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Cargomatic’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.
16.7. Press. You hereby grant Cargomatic permission to identify you as a customer of Cargomatic or user of our Services and to reproduce your name and logo on the Site and in any other marketing materials.
16.8. Conflict. If there is any conflict or inconsistency between the terms and conditions set forth in this Agreement and the terms set forth in any Bill of Lading, Proof of Delivery or any other shipping form, the terms and conditions of this Agreement shall control over such terms. If there is a conflict between the terms of this Terms of Service and a separate agreement which serves as the primary agreement for purposes of defining the transportation services to be provided by Cargomatic, the terms of such separate agreement shall govern, but all non-conflicting terms herein shall apply.
16.9. Copyright/Trademark Information. Copyright © 2013, Cargomatic, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party, which may own the Marks.
16.10. Disclosures. Cargomatic is located at 211 E. Ocean Boulevard, Suite 350, Long Beach, California 90802. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.11. Electronic Communications. The communications between you and Cargomatic use electronic means, whether you use the Service or send us emails, or whether Cargomatic posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Cargomatic in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cargomatic provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
16.12. Contact Information:
Address: 211 E. Ocean Blvd, Suite 350
Long Beach CA 90802
Fax: (866) 630-6473