Terms of Service
August 26, 2024
Last updated: August 26, 2024
Welcome, and thank you for your interest in TruckSmarter, Inc., its subsidiaries, affiliates, successors and assigns (“TruckSmarter,” “we,” “our,” or “us”) and our website at www.trucksmarter.com, along with our related websites, applications, mobile applications, and other products or services provided by us (collectively, the “Services”). These Terms of Service are a legally binding contract between you, on behalf of yourself as a sole proprietor or on behalf of a business entity (“you” or “your”) and TruckSmarter regarding your use of the Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “CONTINUE,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING TRUCKSMARTER’S PRIVACY POLICY AND ANY OTHER AGREEMENT OR DOCUMENT WE MAY PROVIDE TO YOU FROM TIME TO TIME IN CONNECTION WITH THE SERVICES (COLLECTIVELY, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICES. YOUR USE OF THE SERVICES, AND OUR PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS. IF YOU ARE AN ENTITY, ORGANIZATION, OR COMPANY, THE INDIVIDUAL ACCEPTING THESE TERMS ON YOUR BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND YOU TO THESE TERMS AND YOU AGREE TO BE BOUND BY THESE TERMS. BY USING THE SERVICES, YOU CONSENT TO YOUR USE OF ELECTRONIC SIGNATURES IN CONNECTION WITH ANY SERVICES. YOU AGREE THAT YOUR ELECTRONIC SIGNATURE MAY INCLUDE CLICKING DISPLAYED BUTTONS, SELECTING DISPLAYED BOXES, TYPING YOUR NAME IN A DESIGNATED FIELD, USING AN ELECTRONIC FACSIMILE SIGNATURE, REPLYING TO AN EMAIL SENT TO YOUR DESIGNATED EMAIL ADDRESS, OR TAKING OTHER AFFIRMATIVE ACTIONS AS DESCRIBED IN THE APPLICATIONS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF TRUCKSMARTER AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE MARKETING AND OPERATIONAL INFORMATION. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE: Except for certain kinds of disputes described in Section 16 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TRUCKSMARTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
TruckSmarter services overview
TruckSmarter builds products and services to empower truck drivers’ lives by providing modern-day tools to help them manage their business more effectively. TruckSmarter offers Services to further this mission, including but not limited to providing a loadboard, access to funds, a fuel discount program, and trucking business management software.
Eligibility
2.1 You must be at least 18-years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable federal, state, and local laws and regulations.
2.2 Our Services are designed for use only by sole proprietors and other business entities for their internal business purposes. You agree not to use our Services as a consumer for personal, family or household purposes.
Accounts and registration
To access most features of the Services, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You agree to only use a unique password that you do not use with any other website or online service. If you believe that there has been any unauthorized access or use of your account or account credentials, then you must immediately notify us at support@trucksmarter.com. Additionally, you agree that TruckSmarter will not be responsible for carrying out any instructions or authorizations that you give to TruckSmarter regarding any of your account logins or passwords and hereby waive any claims you may have against TruckSmarter arising out of or related to TruckSmarter carrying out such instructions or authorizations.
General payment terms
Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
4.1 Price
TruckSmarter reserves the right to determine pricing for the Services. TruckSmarter will make reasonable efforts to keep pricing information published on the Services up to date. TruckSmarter may change the fees for any feature of the Services, including additional fees or charges. TruckSmarter, at its sole discretion, may make promotional offers with different features and different pricing to any of TruckSmarter’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization
You authorize TruckSmarter to charge all amounts owed by you to TruckSmarter for the Services you select as described in these Terms or published by TruckSmarter (the “Amount Due”), including all applicable taxes, to the payment method specified in or linked to your account. TruckSmarter may seek pre-authorization of your payment method prior to your purchase to verify that the payment method is valid and has the necessary funds or credit available to cover your purchase. You authorize TruckSmarter to initiate Automated Clearing House (ACH) transfers and book transfers (the movement of funds from one deposit account to another) from any deposit accounts that you have linked to your account, including your deposit account with TruckSmarter’s banking partner(s), any deposit account you have connected to transfer funds from or to the foregoing deposit account, or any other bank account provided by you to TruckSmarter (collectively, the “Linked Accounts”) to collect any Amount Due. ACH transfers by TruckSmarter to the Linked Accounts may include credit entries, debit entries, and adjustments for any debit or credit entries made in error. You must comply with the rules issued by the National Automated Clearing House Association which governs funds transfers initiated through the ACH system.
4.3 Delinquent accounts
TruckSmarter may suspend or terminate access to the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any of the unpaid amount, including collection fees.
4.4 Subscription service
The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize TruckSmarter to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on the payment due date for the accrued sums. The subscription will continue unless and until you cancel your subscription, or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fee to your account. We will bill the periodic subscription fee to the payment method you provide to us. You may cancel the Subscription Service through your account page or by contacting us at support@trucksmarter.com.
Licenses
5.1 Limited license
Subject to your complete and ongoing compliance with these Terms, TruckSmarter grants you, solely for your own internal use in connection with your business, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by an authorized third party) on a mobile device that you own or control; and (b) access and use the Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited.
5.2 License restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, then you may not use the Services.
5.3 Feedback
We respect and appreciate the thoughts and comments from our users. If you choose to provide input or suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Services or our company or business generally (“Feedback”), then you hereby grant TruckSmarter an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Ownership ; Proprietary Rights
The Services are owned and operated by TruckSmarter. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services provided by TruckSmarter (“Materials”) are protected by intellectual property and other laws. All Materials included in the Services are the property of TruckSmarter or its third-party licensors. Except as expressly authorized by TruckSmarter, you may not make use of the Materials. There are no implied licenses in these Terms and TruckSmarter reserves all rights to the Materials not granted expressly in these Terms.
Services Involving Third Parties and Third-Party Terms
7.1 Third-party services and linked websites
(a) TruckSmarter may provide tools through the Services that enable you to export information, including User Content (defined below), to, import information from, or otherwise integrate with or access third-party services or websites, including by providing your login credentials to allow TruckSmarter to connect your Broker (defined below) accounts to the Services. By using one of these tools, you hereby authorize TruckSmarter to transfer that information to, receive information from, or otherwise establish a connection with the applicable third-party service. You also authorize us to use your stored Broker login credentials to connect your account with other Broker accounts where you use the same credentials. The Services may also contain links to third-party websites. Third-party services and websites are not under TruckSmarter’s control, and, to the fullest extent permitted by law, TruckSmarter is not responsible for any third-party service’s use of your exported information. TruckSmarter is not affiliated with or sponsored or endorsed by the third parties that provide these services or websites, including any Brokers.
(b) By accessing our Services and/or providing us with login information for a third-party service, you expressly consent and authorize us to (i) use login information to access data on your behalf, (ii) electronically retrieve third party data on your behalf; (iii) bid on and book loads through or with third parties on your behalf; (iv) validate carrier information; (v) validate load information; (vi) use the information accessible to provide the Services; and (vii) use the information accessible in accordance with our Privacy Policy (defined below). TruckSmarter is not responsible for the load board information collected from or by a third party. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, TruckSmarter will have no control over the information that has been shared. We may block or disable access to any third-party services (in whole or in part) through our Services at any time.
7.2 Third-party software
The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
7.3 Third-Party Email
The Services may include functionality that allows you to connect your third-party email. If you connect your account with a third-party email service, you consent to give TruckSmarter access to the contents of your emails. TruckSmarter uses this information to provide Services to you. You can revoke this consent at any time by disconnecting your account through the application or through your third-party email service provider.
7.4 Banking and Transaction Partners
Our Services allow you to open a deposit account and/or debit card with our banking partner: Thread Bank; Member FDIC (“Thread Bank”). If you do so, you can use our Services to access your deposit account, view information about your deposit account, and conduct certain deposit account transactions. You may also be given access to various features offered by Thread Bank through our Services separate from your deposit account. If you cancel your enrollment in our Services at any time, we may close your deposit account. Any personal information processed about you by Thread Bank in connection with your deposit account and debit card is governed by the Thread Bank Privacy Policy. When you open a deposit account or debit card with Thread Bank, you are entering into a direct agreement with Thread Bank pursuant to the TruckSmarter Business Deposit Account Agreement and/or the TruckSmarter VISA Debit Cardholder Agreement. Please review these documents carefully. TruckSmarter is not a party to those agreements. In addition, our transaction partner, Unit Finance Inc. (“Unit”) may assist you and us in processing transactions, handling deposit account operations, and providing technological connection to Thread Bank’s services. Unit’s collection and use of your information is governed by Unit’s Privacy Policy.
7.5 Purchasing Fuel
(a) The Services may include functionality that allows you to purchase, or prepay, for fuel or redeem Fuel Codes (defined below) from participating truck stops (“Truck Stops”) for use by a truck owned or operated by or on behalf of you. When you make a purchase of fuel through the Service, TruckSmarter will deliver a fuel code on behalf of the Truck Stop that you may use at the selected Truck Stop (“Fuel Code”). Fuel Codes are for one-time use only. TruckSmarter credits for fuel (if applicable) are redeemable solely for purchase of Fuel Codes. Fuel Codes may not be redeemed for cash. Fuel Codes have no monetary value, are not a substitute for fiat currency and cannot be used to access products or services other than within the Services. Fuel Codes may not be sold or otherwise transferred unless authorized by TruckSmarter. TruckSmarter reserves the right to limit the amount of fuel you may prepay through the Service. Specifically, you may not purchase from TruckSmarter more than the equivalent of $10,000 in prepaid fuel in any one day; in addition, you may not hold or access more than the equivalent of $2,000 in prepaid fuel in any one day. TruckSmarter is not responsible for any loss or damage resulting from lost, stolen or fraudulently obtained Fuel Codes or use without permission.
(b) By using the Services to purchase fuel, you hereby expressly consent and authorize us to share data submitted by you to the Services or collected by TruckSmarter, including identifiable information (such as name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data) about you, with operators of Truck Stops and their third-party service providers, solely for the purpose of tracking and redeeming Fuel Codes and otherwise providing the Services to you.
7.6 Load Board
(a) If you are a freight broker (“Broker”), TruckSmarter allows you to post and manage loads, including relevant details regarding such loads, through the Services for truck drivers (“Drivers”) to view and book. If you are a Driver, you may select, bid on, or book a load through the means specified by a Broker or contact a Broker.
(b) By using the Services related to the load board, (i) if you are a Driver, you hereby expressly consent and authorize us to share data submitted by you to the Services or collected by TruckSmarter, including identifiable information (such as name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data) about you (the “Information”), with a Broker and their third-party service providers, solely for the purpose of tracking your viewing or selection of load information and otherwise providing the Services; and (ii) if you are a Broker, you hereby expressly consent and authorize us to share the Information with a Driver in connection with providing the Services.
(c) By using the Services related to load boards, either as the Driver or as the Broker, you agree to and acknowledge the following:
(i) TruckSmarter is not a Broker, is not providing the services of a Broker, and does not hold itself out as selling, providing, or arranging for, transportation by motor carrier for compensation;
(ii) TruckSmarter has no control over the quality, safety, or legal aspects of the transactions between Broker and any Driver;
(iii) TruckSmarter makes no representations or warranties with respect to any Driver, and Broker assumes all risk in tendering loads, verifying safety, licensing, authority, insurance, credit, cargo liability and invoicing terms of Drivers you may connect with through the Services;
(iv) TruckSmarter does not endorse or make any claims as to the accuracy of any information that may be provided by a Driver to Broker through the Services;
(v) TruckSmarter is not responsible for the load board information collected from a third party;
(vi) TruckSmarter does not guarantee any coverage for the loads Broker posts on the Services;
(vii) TruckSmarter is not a party to any transaction between Broker and any Driver—any arrangement of loads is between Broker and the Driver; and
(viii) If you are a Broker, the information you provide in connection with the Services may be publicly viewable by any person; TruckSmarter is not responsible for such person’s use of such information.
7.7 Indemnification of Third-Party Service Providers
To the fullest extent permitted by law, you are responsible for your use of the Services, including your use of any third-party services or platforms available through or in connection with the Services. You will defend and indemnify TruckSmarter’s third-party service providers, including Thread Bank and Unit, from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with your use or misuse of the applicable third-party services, including your breach of these Terms or any agreement of the applicable third-party service. In the event that TruckSmarter defends and indemnifies the applicable third-party service provider for such a claim, you will indemnify TruckSmarter in turn for any related liability, damage, loss, and expense, including attorneys’ fees and costs, in accordance with Section 13 (Indemnity).
User Content
8.1 User Content Generally
Certain features of the Services may permit users to upload or otherwise transmit (“Post”) content to the Services, including load information, messages, forum posts, photos, video, images, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Services, subject to the licenses granted in these Terms.
8.2 Limited License Grant to TruckSmarter
(a) By Posting User Content to or via the Services, you grant TruckSmarter a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform, communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed.
(b) Notwithstanding anything to the contrary, TruckSmarter shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User Content and data derived therefrom), and TruckSmarter will be free (during and after the Term) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other TruckSmarter offerings, and disclose such data solely in aggregate or other de-identified form in connection with its business.
(c) No rights or licenses are granted except as expressly set forth herein. All the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Services. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from TruckSmarter’s exercise of the license set forth in this Section 8.2 (Limited License Grant to TruckSmarter).
8.3 Limited License Grant to Other Users
By providing User Content to or via the Services to other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services.
8.4 Specific Rules for Photographs and Images
If you Post a photograph or image to the Services that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Services, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section 8.4 (Specific Rules for Photographs and Images) does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.5 You Must Have Rights to the Content You Post; User Content Representations and Warranties
You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. TruckSmarter disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content via the Services, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TruckSmarter and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by TruckSmarter, the Services, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TruckSmarter to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.6 User Content Disclaimer
We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. TruckSmarter may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Services, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TruckSmarter with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TruckSmarter does not permit infringing activities on the Services.
8.7 Monitoring Content
TruckSmarter does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that TruckSmarter reserves the right to, and may, from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time TruckSmarter chooses to monitor the content, TruckSmarter still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). TruckSmarter may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Services without any liability to the user who Posted such User Content to the Services or to any other users of the Services.
Communications
9.1 Text Messaging & Phone Calls
You agree that TruckSmarter and those acting on our behalf may send you text (SMS) messages and telephone calls (including prerecorded and artificial voice and autodialed) at the phone number you provide us. These messages and calls may include operational information about your use of the Services, as well as marketing information. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM TRUCKSMARTER, YOU CAN EMAIL SUPPORT@TRUCKSMARTER.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES; HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICES. You may continue to receive calls and text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase of or use of the Services. You represent and warrant that you have obtained all necessary consents for TruckSmarter to make informational and/or transactional phone calls to phone numbers provided by you or on your behalf.
9.2 Push Notifications
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by updating your preferences on your mobile device.
9.3 Email
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Prohibited Conduct
BY USING THE SERVICES, YOU AGREE NOT TO:
(a) use the Services for any illegal purpose or in violation of any local, state, national, or international law;
(b) harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Services;
(c) violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(d) interfere with security-related features of the Services, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law;
(e) interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Services; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services;
(f) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other account on the Services without permission, or falsifying your age or date of birth;
(g) develop or use any applications that interact with our Services without our prior written consent;
(h) use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services, provided that TruckSmarter grants to the operators of public search engines permission to use spiders to index materials from the website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials and only consistent with our robot.txt files. TruckSmarter reserves the right to revoke such permission, either generally or in specific cases, at any time;
(i) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
(j) attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
Modification of Terms
We reserve the right to change these Terms on a going-forward basis at any time. We will provide you with notice of such changes by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective upon such notification, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. Unless material changes are made to the arbitration provision under Section 16 (Dispute Resolution and Arbitration), you agree that modification of these Terms does not create a new right to opt out of arbitration.
Term, Termination, and Modification of the Services
12.1 Term
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Services, and ending when terminated as described in Section 12.2 (Termination).
12.2 Termination
If you violate any provision of these Terms, then your authorization to access the Services and these Terms automatically terminates. In addition, TruckSmarter may, at its sole discretion, terminate these Terms or your account on the Services, or suspend or terminate your access to the Services, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at support@trucksmarter.com.
12.3 Effect of Termination.
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your account or the Services; (c) you must pay TruckSmarter any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by TruckSmarter), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Services since, upon termination of your account, you may lose access rights to any User Content you Posted to the Services. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Services using a different name, email address or other forms of account verification.
12.4 Modification of the Services
TruckSmarter reserves the right to modify or discontinue all or any portion of the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. TruckSmarter will have no liability for any change to the Services, including any paid-for functionalities of the Services, or any suspension or termination of your access to or use of the Services. You should retain copies of any User Content you Post to the Services so that you have permanent copies in the event the Services are modified in such a way that you lose access to User Content you Posted to the Services.
Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify TruckSmarter, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “TruckSmarter Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Services; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (4) any dispute or issue between you and any third party; (5) any inaccurate information provided from you (whether directly or indirectly) to third-party service providers in connection with the Services; or (6) your use or misuse of any third-party service in connection with the Services. You will promptly notify the TruckSmarter Entities of any third-party claims and cooperate with the TruckSmarter Entities in defending such claims. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties by TruckSmarter
14.1 THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TRUCKSMARTER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TRUCKSMARTER DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, INCLUDING THIRD-PARTY SERVICES CONNECTIONS OR INFORMATION, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TRUCKSMARTER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR TRUCKSMARTER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE TRUCKSMARTER ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
14.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (DISCLAIMERS; NO WARRANTIES BY TRUCKSMARTER) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
14.4 TruckSmarter does not disclaim any warranty or other right that TruckSmarter is prohibited from disclaiming under applicable law.
Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TRUCKSMARTER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TRUCKSMARTER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.2 EXCEPT AS PROVIDED IN SECTIONS 16.5 (COMMENCING ARBITRATION) AND 16.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TRUCKSMARTER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO TRUCKSMARTER FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
16.1 Generally
Except as described in Section 16.2 (Exceptions) and 16.3 (Opt-Out), you and TruckSmarter agree that every dispute arising in connection with these Terms, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TRUCKSMARTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions
Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to TruckSmarter, Inc., Attention: Legal Department – Arbitration Opt-Out, 33 New Montgomery St, Ste. 1000, San Francisco, CA 94105 that specifies: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TruckSmarter receives your Opt-Out Notice, this Section 16 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator
This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting TruckSmarter.
16.5 Commencing Arbitration
Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). TruckSmarter’s address for Notice of Arbitration is: TruckSmarter, Inc., 33 New Montgomery St, Ste. 1000, San Francisco, CA 94105. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TruckSmarter may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, TruckSmarter will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if TruckSmarter has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
16.6 Arbitration Proceedings
Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or TruckSmarter must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
16.7 Arbitration Relief
Except as provided in Section 16.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by TruckSmarter before an arbitrator was selected, TruckSmarter will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (c) for judicial review expressly permitted by law or (d) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
16.8 No Class Actions
YOU AND TRUCKSMARTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TruckSmarter agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.9 Modifications to this Arbitration Provision
If TruckSmarter makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to TruckSmarter’s address for Notice of Arbitration, in which case your account with TruckSmarter will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
16.10 Enforceability
If Section 16.8 (No Class Actions) or the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, or if TruckSmarter receives an Opt-Out Notice from you, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.
Miscellaneous
17.1 General Terms.
These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and TruckSmarter regarding your use of the Services. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. The failure to require performance of any provision in these Terms will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2 Governing Law
These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and TruckSmarter submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Services from our offices in California, and we make no representation that Materials included in the Services are appropriate or available for use in other locations.
17.3 Privacy Policy
Please read the TruckSmarter Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The TruckSmarter Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
17.4 Additional Terms
Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. In the event of a conflict between these Terms and the Additional Terms, the Additional Terms will prevail.
17.5 Consent to Electronic Communications
By using the Services, you consent to receiving certain electronic communications from us as further described in our Consent to Electronic Communications. Please read our Consent to Electronic Communications to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.6 Contact Information
The Services are offered by TruckSmarter, Inc., located at 33 New Montgomery St, Ste. 1000, San Francisco, CA 94105. You may contact us by sending correspondence to that address or by emailing us at support@trucksmarter.com.
17.7 Notice to California Residents
If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
17.8 No Support
We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use
The Services are intended for visitors located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple
This Section 18 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and TruckSmarter only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
Notice Regarding Android
This Section 19 (Notice Regarding Android) only applies to the extent you are using our mobile application on a device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”): (1) you acknowledge that these Terms are between you and us only, and not with Google; (2) your use of our Android App must comply with Google’s then-current Android Market Terms of Services; (3) Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms; and (4) Google is a third-party beneficiary to the Terms as they relate to our Android App.
