The following TruckSmarter Cashback Terms & Conditions is only applicable to you if you have accepted these TruckSmarter Cashback Terms & Conditions or participated in the cashback program on or prior to May 17, 2024.

Please read these TruckSmarter Cashback Terms & Conditions (the “Terms”) carefully and retain them for your future reference. These Terms contain the general terms, conditions and disclosures related to the cashback program (the “Program”) made available by TruckSmarter, Inc. (“TruckSmarter”), to businesses that have a TruckSmarter Deposit Account and TruckSmarter VISA debit card provided by Blue Ridge Bank, N.A or Thread Bank. This is a separate and independent agreement from the TruckSmarter Visa Debit Cardholder Agreement and/or the TruckSmarter Deposit Account Agreement.

When you see the words “we,” “us,” or “our” in these Terms, it refers to the TruckSmarter and any of TruckSmarter’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the business that earns cashback on Qualifying Purchases by agreeing to these Terms, that is responsible for complying with these Terms, as well as your Authorized Users, representatives, administrators, and successors.

BY CHECKING A BOX INDICATING YOUR ACCEPTANCE, OR BY PARTICIPATING IN THE PROGRAM, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR PARTICIPATION IN THE PROGRAM, YOU AGREE TO BE TO BE BOUND BY THESE TERMS AS WELL AS ANY OTHER AGREEMENT OR DOCUMENT WE MAY PROVIDE TO YOU FROM TIME TO TIME IN CONNECTION WITH THE PROGRAM. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO PARTICIPATE IN THE PROGRAM. YOUR PARTICIPATION IN THE PROGRAM, AND OUR PROVISION OF THE PROGRAM 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.

YOU AGREE TO RECEIVE TEXTS FROM US OR ON OUR BEHALF AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE MARKETING AND OPERATIONAL INFORMATION. YOU UNDERSTAND AND AGREE THAT THESE TEXTS 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 15, 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.

1. Program Overview.

These Terms describe how the Program works and are an agreement between you and TruckSmarter. By participating in the Program, you agree to be bound by these Terms, the TruckSmarter terms of service available at: https://www.trucksmarter.com/legal/terms-of-service (the “Terms of Service”), which govern TruckSmarter’s provision of the Services (as defined in the Terms of Service) and which are incorporated by reference herein, and the Privacy Policy, each of which is a legally binding contract between you and TruckSmarter regarding your participation in the Program and is incorporated by reference herein. Interpretation of these Terms and any other Program Rules shall be at our sole discretion. Your participation in the Program is expressly conditioned upon your compliance with these Terms and with all present and future Program Rules, terms, regulations, policies and procedures that TruckSmarter may, in its discretion, adopt from time to time. The Program is void where prohibited by law. You agree that use of your Account or any feature of the Program indicates your acceptance of these Terms.

2. Definitions.

In these Terms, the following words have the special meanings below:

2.1  “Account” means your TruckSmarter Deposit Account provided by Blue Ridge Bank, N.A. or Thread Bank, as applicable;

2.2 “TruckSmarter Platform” means the TruckSmarter platform (including the TruckSmarter application, website and other services) that may be used with the Card and the Program;

2.3 “Authorized User” means anyone legally authorized by you to use your Account or a Card;

2.4 “Bank” means Blue Ridge Bank, N.A., member of the Federal Deposit Insurance Corporation and the Bank partner of the Card and the Account and/or Thread Bank, member of the Federal Deposit Insurance Corporation and the Bank partner of the Card and the Account, as applicable;

2.5 “Card” means your TruckSmarter VISA debit card, including physical card or a virtual card, provided by Blue Ridge Bank, N.A or Thread Bank;

2.6 “Privacy Policy” means the TruckSmarter Privacy Policy at: https://www.trucksmarter.com/legal/privacy-policy, as amended from time to time;

2.7 “Program Rules” shall reference the Terms, along with any other rules, terms, regulations our, policies and procedures that TruckSmarter may issue in writing in conjunction with the Program, which shall, in TruckSmarter’s discretion, be incorporated by reference herein;

2.8 “Qualifying Purchases” is defined in Section 5 (How You Can Earn Cashback);

3. Eligibility

You must be at least 18 years old to participate in the Program. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18 years old; (2) you have not previously been suspended or removed from the Program; and (3) your registration and your participation in the Program is in compliance with any and all applicable laws and regulations. Additionally, to be eligible to participate in the Program, your Account and Card must be active and in good standing. You will not be able to earn cashback for Qualifying Purchases if your Account or Card is not in good standing for any reason. We may decline to provide access to the Program for any reason at our sole discretion. We are not liable for any damages or liabilities resulting from refusal of a Program relationship.

4. Changes to the Program, the Program Rules, and these Terms

We reserve the right to modify or discontinue all or any portion of the Program at any time, temporarily or permanently, without notice to you. We will have no liability for any change to the Program or any suspension or termination of your access to or participation in the Program.

We may make changes to these Terms at any time and at our sole discretion. Please check these Terms periodically for changes. We will provide advance notice to you of a change in terms where required by law, which may be delivered to you electronically through email or through the TruckSmarter Platform. Revisions will be effective immediately except that, for existing participants, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. Continued participation in the Program after any such change constitutes your agreement to be bound by the amended Terms. However, we may require that you accept the modified Terms in order to continue to participation in the Program. If you do not agree to the modified Terms and no longer wish to participate in the Program, then you should cancel your participation in the Program in accordance with Section 8. Except as expressly permitted in this Section 4, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.

5. How You Can Earn Cashback.

5.1 You will earn one percent (1%) cashback when an Authorized User uses the Card (either through a physical card or virtual card) to make eligible purchases of products and services, minus any returns or refunds (“Qualifying Purchases”). Qualifying Purchases are defined to be all Card transactions except:

(A) balance transfers;

(B) cash advances;

(C) purchase of travelers’ checks, foreign currency, money orders, wire transfers or similar cash-like transactions;

(D) purchase of lottery tickets, casino gaming chips, racetrack wagers or similar betting transactions;

(E) writing or cashing checks;

(F) interest;

(G) unauthorized or fraudulent charges;

(H) Card transactions that you dispute; and

(I)   fees of any kind, including an annual fee, if applicable.

5.2 Discounts, gift cards, offers, promotions, coupons or any other rewards received through this Program or otherwise are not eligible for earning cashback.

5.3 Transactions not involving your Card made through your Account are not eligible for cashback.

5.4 Cashback is only earned on the amount actually spent on Qualifying Purchases.

6. When You Will Receive Cashback.

6.1 Cashback will be posted to your Account within five (5) business days following the end of the calendar month, based on the Qualifying Purchases made with your Card, but minus any returns or refunds for the preceding month.

6.2 Adjustments will be made to your cashback balance as the result of canceled transactions, refunds, returns or other credits. Such adjustments may cause a negative cashback balance. If you have a negative cashback balance at the end of the calendar month in which at least one Qualifying Purchase is posted to your Card, the cashback for such Qualifying Purchase(s) will be used to offset your negative cashback balance, and will not be transferred to your Account until you no longer have a negative cashback balance.

6.3 If your Account and/or Card is closed for any reason, any earned cashback that has not yet been posted to your Account will be forfeited.

6.4 If you have a dispute related to any cashback you believe you should have earned for a transaction, you must provide written notice to us within ninety (90) days of the date upon which the transaction was posted. Such a dispute must be made by sending an email to support@trucksmarter.com, identifying the transaction, the date on which it was made, and the amount of cashback you believe you should have earned.

7. Caution and Warning.

7.1 We reserve the right to limit accrual of cashback, including applying caps or other limitations and conditions. TruckSmarter reserves the right to reject, revoke, cancel, terminate, or suspend any benefit and/or ability to participate in the Program, or take any other action under the law at its discretion, at any time with immediate effect and without written notice or liability to you, if TruckSmarter, in its sole discretion, believes: (A) you or any of your Authorized Users have (I) violated any of the Program Rules; (II) acted in a manner inconsistent with applicable law, regulations or ordinances; (III) engaged in any misconduct or wrongdoing in connection with the Program; or (IV) engaged in abusive, fraudulent, inappropriate, or hostile conduct in connection with the Program; or (B) TruckSmarter’s provision of the Program and/or any associated benefits to you may violate any applicable laws to which TruckSmarter is subject from time to time.

7.2 Any attempt to deliberately damage or undermine the legitimate operation of the Program or the TruckSmarter Platform may be a violation of criminal and civil laws. Should such an attempt be made, TruckSmarter reserves the right to seek damages or other remedies to the fullest extent permitted by law. Any abuse of the Program, failure to follow any Program Rules, or any misrepresentation by you may subject you to cancellation of your ability to participate in the Program and will affect eligibility for future participation in the Program. TruckSmarter reserves the right to seek all remedies, whether available at law or at equity, criminal or civil, in the event you defraud or abuse the Program, fail to follow any terms of the Program, or make any misrepresentations to TruckSmarter.

8. Termination/Cancellation.

The Program has no predetermined termination date and may continue until such time as we, at our sole discretion, elect to designate a Program termination date. We may, in our sole discretion, terminate the Program, in whole or in part, at any time, with 30 days’ notice, which may result in the cancellation of all benefits and privileges associated with the Program. Subject to the Terms, you can still earn cashback during the 30 day termination notice period. Such cashback will be posted to your Account within 5 business days of the Program termination date. Following the Program termination date, you will no longer be able to earn cashback. If you wish to cancel your participation in the Program, you may contact our customer service team at support@trucksmarter.com. If your Account is cancelled you will lose the cashback that has been earned but not yet credited to your Account.

9. Other Important Information You Should Know.

9.1 Notwithstanding the foregoing, TruckSmarter’s failure to exercise any of its rights under the Program Rules or its delay in enforcing or exercising any of those rights shall not constitute a waiver of such rights.

9.2 Events beyond TruckSmarter’s control, such as computer equipment or electronic data transmission failure, strikes, acts of God, civil disturbance, terrorism or war, which may materially affect our ability to perform, will allow TruckSmarter to suspend or terminate the Program.

9.3 All dollar amounts referred to in these Terms are in U.S. dollars (USD).

9.4 TruckSmarter may assign our rights and obligations under these Terms to a third party, who will then be entitled to any of our rights that we assign to them.

9.5 We’re not responsible for any disputes you may have with any Authorized Users about the Program.

9.6 The Program is void where prohibited by federal, state, or local law.

9.7 These Terms and use of the Program is governed by federal law, as well as the law of California, and will apply no matter where you live or use the Program.

9.8 You are responsible for any government tax, duty, or other amount imposed by law in any country in respect of any cashback paid to you.

10. Communications.

10.1 We may send communications about the Program and marketing messages to you at any mailing or email address or phone number in our records or through our online services, such as SMS or the App.

10.2 By providing your phone number and agreeing to these Terms, you are providing TruckSmarter or our agents your signature expressly consenting to receive marketing messages, SMS, and texts, including by automated means, at the number provided, even if the number is on a corporate, state, or national Do Not Call list. You acknowledge and agree that you are not required to agree as a condition of any purchase or service. To opt-out of marketing messages, please contact our Customer Service team at support@trucksmarter.com.

10.3 Let us know right away about any changes to your contact information in the TruckSmarter Platform.

11. Indemnification, Limitation of Liability and Release.

11.1 You agree to indemnify and hold TruckSmarter and its third-party service providers and all of their respective affiliates, directors, officers, employees, agents and contractors harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from your or an Authorized User’s: (A) participation in the Program; (B) fraud or misuse of the Program; and/or (C) violation of (I) these Terms, (II) the Program Rules, and/or (III) any applicable law or the rights of any third party.

11.2 BY AGREEING THESE TERMS, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF YOUR AUTHORIZED USERS, REPRESENTATIVES, ADMINISTRATORS, AND SUCCESSORS AGREE:

(A) TO WAIVE ANY RIGHTS TO CLAIM AMBIGUITY WITH RESPECT TO THESE TERMS;

(B) TO WAIVE ALL OF YOUR RIGHTS TO BRING ANY CLAIM, ACTION, OR PROCEEDING AGAINST TRUCKSMARTER, ITS SUBSIDIARIES OR AFFILIATED ENTITIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) IN CONNECTION WITH THE PROGRAM; AND

(C) TO FOREVER AND IRREVOCABLY RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, CAUSES OF ACTION, PROCEEDINGS, DEMANDS, FINES, PENALTIES, LIABILITY COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, OUTSIDE ATTORNEYS’ OR LEGAL FEES) THAT MAY ARISE IN CONNECTION WITH:

(I) THE PROGRAM, YOUR ACCOUNT AND/OR THE TRUCKSMARTER PLATFORM, INCLUDING BUT NOT LIMITED TO YOUR OR ANY AUTHORIZED USER’S PARTICIPATION OR INABILITY TO PARTICIPATE IN THE PROGRAM OR ANY OFFER OR BENEFIT,

(II) ANY ERRORS PUBLISHED IN RELATION TO THE PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY TYPOGRAPHICAL ERRORS, PRINTING, ERRORS OF DESCRIPTION, ERRORS IN THE PROGRAM RULES OR ANY PROGRAM MATERIALS, AND ERRORS IN THE CREDITING OR DEBITING OF CASHBACK FROM YOUR ACCOUNT,

(III) ANY CHANGE IN ANY BENEFIT (OR ANY COMPONENTS THEREOF) DUE TO UNAVAILABILITY, OR DUE TO REASONS BEYOND TRUCKSMARTER’S CONTROL,

(IV) ANY INTERRUPTIONS IN OR POSTPONEMENT, CANCELLATION, TERMINATION, OR MODIFICATION OF THE PROGRAM OR ANY COMPONENT THEREOF,

(V) HUMAN ERROR,

(VI) ANY TECHNICAL MALFUNCTIONS OR UNAVAILABILITY OF THE TRUCKSMARTER PLATFORM, ANY COMPUTER SYSTEM, POS, COMPUTER TIMING AND/OR DATING MECHANISM, SOFTWARE, OR INTERNET SERVICE PROVIDER, OR MAIL SERVICE UTILIZED BY ANY OF THE RELEASED PARTIES OR BY YOU OR ANY AUTHORIZED USER,

(VII) ANY WRONGFUL, NEGLIGENT, OR UNAUTHORIZED ACT OR OMISSION ON THE PART OF ANY OF THE RELEASED PARTIES OR OF ANY OTHER THIRD PARTY,

(VIII) LOST, LATE, MISDIRECTED, DAMAGED OR DESTROYED CORRESPONDENCE, CASHBACK, OFFERS, DISCOUNTS OR ANY OTHER BENEFIT (OR ANY ELEMENT THEREOF),

(IX) THEFT OR UNAUTHORIZED REDEMPTION OF CASHBACK, OFFERS, DISCOUNTS, OR OTHER BENEFIT, AND

(X) ANY ACTS OR OMISSIONS BY YOU, ANY AUTHORIZED USER OR THIRD PARTIES INCLUDING NEGLIGENCE OR WILLFUL MISCONDUCT.

11.3 THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE, WHETHER TO YOU, TO ANY AUTHORIZED USER OR TO ANY OTHER PERSON OR TO ANY PROPERTY, RELATED TO OR RESULTING FROM YOUR OR ANY AUTHORIZED USER’S PARTICIPATION IN THE PROGRAM AND/OR THE ACCEPTANCE OR USE OF ANY BENEFIT. BY PARTICIPATING IN THE PROGRAM, YOU AND ANY AUTHORIZED USER EXPRESSLY ASSUME ALL LIABILITY AND RESPONSIBILITY FOR YOUR OR ANY AUTHORIZED USER’S PARTICIPATION AND AGREE THAT PARTICIPATION IS SOLELY AT YOUR OR THEIR OWN RISK.

11.4 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE RELEASED PARTIES 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 PARTICIPATION IN, OR YOUR INABILITY TO PARTICIPATE IN, THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY RELEASE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

11.5 EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING ARBITRATION) AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE RELEASED PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO YOUR PARTICIPATION IN OR YOUR INABILITY TO PARTICIPATE IN ANY PORTION OF THE PROGRAM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO US FOR PARTICIPATION IN THE PROGRAM IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.

11.6 IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY DELAY OR FAILURE TO PERFORM DUE TO CAUSES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF WAR, NATURAL DISASTERS, WEATHER, PANDEMICS/EPIDEMICS, TERRORISM, OR ANY ACT OR OMISSION OF A THIRD PARTY.

11.7 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SOLE REMEDY AVAILABLE TO YOU IN CONNECTION WITH THE PROGRAM (WHETHER YOUR CLAIM IS BASED IN LAW OR EQUITY) SHALL BE THE CREDITING OR RE-CREDITING TO YOUR ACCOUNT OF CASHBACK IN AN AMOUNT NO GREATER THAN THE AMOUNT OF CASHBACK AT ISSUE.

11.8 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 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. Disclaimer of All Warranties.

12.1 WITHOUT LIMITING THE FOREGOING, THE PROGRAM, INCLUDING, WITHOUT LIMITATION, YOUR ACCOUNT, THE TRUCKSMARTER PLATFORM AND ALL CASHBACK, OFFERS, DISCOUNTS AND BENEFITS, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TRUCKSMARTER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NEITHER TRUCKSMARTER NOR ITS AGENCIES, AGENTS, SUPPLIERS OR REPRESENTATIVES WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE PROGRAM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE PROGRAM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED. NEITHER THE PROGRAM NOR ANY BENEFIT OFFERED BY THE PROGRAM CREATES, CONSTITUTES OR GIVES RISE TO ANY LEGAL OR CONTRACTUAL RIGHTS BY YOU AGAINST TRUCKSMARTER. YOUR USE OF THE PROGRAM IS SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. CHECK LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS. THIS SECTION 12 WILL SURVIVE TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.

12.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PROGRAM OR US OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PROGRAM WILL CREATE ANY WARRANTY REGARDING US OR THE PROGRAM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PROGRAM. YOU UNDERSTAND AND AGREE THAT YOU PARTICIPATE IN ANY PORTION OF THE PROGRAM 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 PROGRAM) OR ANY LOSS OF DATA.

12.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 12 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.

13. Severability.

The provisions of these Terms are intended to be interpreted in a manner which makes them valid, legal, and enforceable. If any portion of these Terms should be held invalid or unenforceable for any reason, such portion shall be deemed modified or severed from these Terms in such a manner as to enable the remaining portions of these Terms to remain in full force and effect as if no invalid or unenforceable provision had been part of these Terms. It is expressly understood and agreed between you and TruckSmarter that such modification or restriction may be accomplished unilaterally by us, or alternatively, by disposition of an arbitrator or a court of law. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from these Terms without affecting the validity, legality, or enforceability of any of the remaining provisions.

14. Privacy.

For an explanation of TruckSmarter’s practices and policies relating to the collection, use, and storage of your personal information, please refer to TruckSmarter’s Privacy Policy available at: https://www.TruckSmarter.com/legal/privacy-policy. TruckSmarter, its agents, affiliates, subsidiaries, representatives or service providers may use your information for purposes of providing cashback and/or for future marketing, such as to notify you of a product or promotion that may be of interest.

15. Dispute Resolution and Arbitration

15.1 Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and TruckSmarter agree that every dispute arising in connection with these Terms, the Program, 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.

15.2 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) to file suit in a court of law to address an intellectual property infringement claim.

15.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 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, 210 East Main Street, Rogersville, TN 37857 that specifies: your full legal name, the email address associated with your account on the Program, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TruckSmarter receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

15.4 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.

15.5 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., 210 East Main Street, Rogersville, TN 37857. 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.

15.6 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.

15.7 Arbitration Relief. Except as provided in Section 15.8 (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.

15.8 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. 

15.9 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.

15.10 Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 is found to be unenforceable, or if TruckSmarter receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 (Governing Law) will govern any action arising out of or related to these Terms.

16. MISCELLANEOUS

16.1 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 participation in the Program. 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 at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

16.2 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 Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms.

16.3 Translation of the Terms in Other Languages. These Terms may be translated into other languages as well. However, in case of discrepancies or inconsistencies between those versions and the English version, the English one will prevail.

16.4 Consent to Electronic Communications. By participating in the Program, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy 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.

16.5 Acknowledgment. You acknowledge that (A) you have read and understood these Terms and they represent a binding agreement and/or (B) you have the opportunity to have this Agreement reviewed by a legal counsel, and (C) this Agreement has the same force and effect as a signed agreement.

16.6 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 Program or to receive further information regarding participation in the Program.

16.7 No Support. We are under no obligation to provide support for the Program. In instances where we may offer support, the support will be subject to published policies.

16.8 International Participation. The Program is intended for visitors located within the United States. We make no representation that the Program is appropriate or available outside of the United States. Participation in the Program from countries or territories or by individuals where such access is illegal is prohibited.