LoadMate Terms of Use
These LoadMate Terms of Use (this "Agreement") govern all use of the content and information (the "Content") and the services, features, and functionality made available via the LoadMate online platform accessible via the Ship.Cars website (the "Platform") and the LoadMate application programming interface (the "API"), as provided by Ship.Cars USA, LLC (the "Ship.Cars"), all of which may be referred to collectively as the "Services". The Agreement applies to the entity that is, or is becoming, a subscriber to any Services (each a \"Subscribing Entity\") and any user (each an \"End User\" or "You") of an account (each a \"User Account\") issued under Subscribing Entity\'s account (the \"Entity Account\").
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, AS SET FORTH IN SECTION 21 BELOW. WE EACH FURTHER AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES\' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Acknowledgements.
By registering for or using the Services (including when You check the relevant box upon being presented with this Agreement and/or upon first creating an Entity Account or User Account), You
A. acknowledge that You have read and understand this Agreement;
B. represent that You are 18 years of age or older;
C. accept the terms of this Agreement (including the limitations of liability, disclaimers, indemnification obligations, and arbitration provisions);
D. acknowledge that Your User Account is not for Your personal use but rather is issued under the Entity Account, for use consistent with the terms of this Agreement, and that Subscribing Entity has the right to control, terminate and/or suspend access to any User Account issued under its Entity Account; and
E. if You are creating an Entity Account on behalf of Subscribing Entity, agree to the terms of this Agreement on behalf of Subscribing Entity, and warrant and represent that You have the authority to bind the Subscribing Entity to this Agreement.
If You do not agree to the terms of this Agreement, You may not access or use the Services or any Entity Account or User Account, as taking said actions shall be viewed as Your acceptance of the terms of this Agreement.
You certify that:
A. Subscribing Entity is a bona fide freight broker, dealership, auction provider or similar entity;
B. Your use of the Services is and shall be (unless Ship.Cars expressly agrees otherwise in writing) solely for Subscribing Entity's commercial purposes related to transportation management, the movement of Subscribing Entity's freight and other Services offered by Ship.Cars on the Services;
C. You will not reproduce, republish, resell, or distribute the Services or any Content, in any format, in whole or in part, for any other purpose;
D. Your access or use of the Services is not for the purpose of competing with Ship.Cars with respect to the Services offered (and You agree any violation of this section shall create irreparable harm for which Ship.Cars is also entitled to injunctive relief and compensation);
E. You will not allow non-registered users access to the Services and will never provide Your password or other log-in credentials to any other user;
F. You shall not and may not resell or assign Your rights or obligations under this Agreement;
G. You do and shall conduct business in an ethical manner and shall not engage in any illegal, deceptive, misleading or fraudulent practice; and
H. All User Accounts created under the Entity Account are for use by Subscribing Entity's employees, contractors or agents, and Subscribing Entity (and any End User acting on its behalf) shall not create a User Account for any other person or entity.
Accessing the Services/Transactions.
We reserve the right to suspend access to, discontinue or amend the Services, as well as any Content, in our sole discretion for any or no reason, with or without notice, and without liability. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period of time.
The Platform may refer to some Services that are not available to You without specifically identifying the reason that the Service is not available. Reference to such Services by the Platform does not imply that Ship.Cars intends to offer such Services to all users.
You are responsible for making all arrangements necessary (e.g., computers, internet services) for You to have access to the Services.
Subscribing Entity is responsible for ensuring that all persons who access the Services through its Internet connection and/or access its Entity Account and/or User Accounts created under its Entity Account are aware of the applicable terms of this Agreement and comply with them.
To create a User Account or Entity Account, or otherwise access the Services, You may be asked to provide certain registration details or other information. It is a condition of Your use of the User Account, Entity Account and Services that all the information You provide to Ship.Cars (including via the Services) is correct, current, and complete.
You agree not to impersonate any other person or entity, whether actual or fictitious, including anyone from Ship.Cars.
By creating an Entity Account or User Account, You authorize Ship.Cars to include data about You, Subscribing Entity and shipments (e.g., the shipper, carrier, and recipient) in the Platform's internal directory and also in the directories of related services provided by Ship.Cars. This data may include publicly available data about You and Subscribing Entity, such as its name, address, contact information, Dealer License Number (if any) as well as any other data You have provided Ship.Cars or the Services about Your company, operations and shipments.
You acknowledge that the Platform provides a neutral venue where Subscribing Entity (and End User's acting on its behalf) may, among other things, post loads of freight, communicate and enter into agreements with carriers to transport such freight, track the location of such freight, and otherwise manage loads.
Ship.Cars is not involved in any agreement or transaction between Subscribing Entity and other users of the Platform; has no control over the quality, safety, or legal aspects of the transactions that may take place with such third parties, the services that they offer and provide, and whether they comply with any applicable laws, regulations, rules or industry and/or professional standards; and has no responsibility or liability for any dispute that arises between Subscribing Entity (and any of its End Users) and any third party resulting from the use of the Platform or otherwise.
Any agreement for services that You may enter into via the Platform with a third party is solely between You and such third party, and You acknowledge and agree that it is Your sole responsibility to check the credentials, including but not limited to the safety/authority record, of any such third party.
Without limiting the generality of the foregoing, Ship.Cars assumes no responsibility for whether any third party complies with any applicable industry and/or professional standards, including:
A. the pick-up and delivery of a load within the agreed-upon windows of time and at the agreed-upon price (and to the extent You arrange delivery directly with the customer, including alternative arrangements, You are solely responsible for any liability in connection with such alternative arrangements, and You shall indemnify and hold Ship.Cars harmless from and against any claims or losses arising therefrom);
B. making loads available for pickup and delivery;
C. prompt notification to all appropriate parties of unexpected delays in the pick-up or delivery of loads;
D. handling of loads so as to avoid any personal injury or damage to the loads;
E. providing appropriate parties with a completed and signed bill of lading/vehicle condition form upon delivery of the loads;
F. handling of damage claims in a fair and responsive manner;
G. interaction in a professional and courteous manner; and
H. maintenance of adequate insurance coverage and applicable licenses and bonds.
<!-- -->License Grant. Subject to the terms of this Agreement, and Your compliance therewith, Ship.Cars grants each End User a limited, non-exclusive, and nontransferable license to access and use the Services (a) for the purposes described herein and as otherwise permitted in writing by Ship.Cars, (b) strictly in accordance with the terms of this Agreement and other terms governing the Services (whether made available via the Services or the Ship.Cars website), and (c) use features of the Services to the extent the applicable functionality is made available to such End User. All use of the Services is subject to the usage limitations applicable to Subscribing Entity's Subscription.
License Restrictions. Each of the following license restrictions shall survive any termination of the Agreement. You shall not:
copy the Services or any part thereof;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services or Content;
use the Services or any Content to develop a competitive product or service, or provide any information obtained from the Services or Content, or the use thereof, to any company considered by Ship.Cars to be a competitor; or
attempt to mine or replicate any Content provided via the Services, without the express, prior written permission of Ship.Cars.
Reservation of Rights.
You acknowledge and agree that the Services are provided under license, and not sold, to You. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto, other than the right to use the Services in accordance with the license granted, subject to all terms, conditions, and restrictions of this Agreement. Ship.Cars and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, patent rights, database rights, moral rights and other intellectual property rights therein or relating thereto (the "Protected IP"), except as expressly granted to You in this Agreement. The Protected IP shall include but is not limited to the design, layout, look, appearance, organization, compilation of the Content, code, data, materials, software, audio, photographs, artwork, text forms and graphics of the Services. Reproduction and misuse of any of the Protected IP is strictly prohibited. If You would like a license to use any of the Protected IP beyond what is permitted in this Agreement, please contact us.
Ship.Cars may disclose to You, or You may otherwise learn of or discover, our documents, object code, source code, or other confidential or proprietary information, including marketing information, financial information, or information about our business practices and operations, management styles, capabilities, systems, current and future strategies, software technologies, processes, procedures, methods and applications, or other aspects of our business including but not limited to such information gained through Your use of the Services ("Our Information"). You hereby agree and acknowledge that any and all of Our Information is confidential and shall be and remain Ship.Cars intellectual property and proprietary information. You agree to use and disclose Our Information only for the specific purposes allowed by this Agreement or the Services. Any other use or any other disclosure of Our Information to a third-party, specifically including but not limited to a competitor, is strictly prohibited and will be vigorously challenged in a court of law. Furthermore, You acknowledge that Our Information is proprietary, confidential and extremely valuable to us, and that we would be materially damaged by Your disclosure of Our Information. You acknowledge and agree that monetary damages provide an insufficient remedy for the breach of this confidentiality obligation, and that we shall be entitled to injunctive relief for any violation of such obligation.
The confidentiality obligations set forth in Section 5.2 above do not apply to include information that:
A. was rightfully known to You without restriction on use or disclosure prior to such information's being disclosed or made available to You in connection with this Agreement;
B. was or becomes generally known by the public other than by Your noncompliance with this Agreement;
C. was received by You on a non-confidential basis from a third party that was not, at the time of such receipt, under any obligation to maintain its confidentiality; or
D. You can demonstrate by written or other documentary records was or is independently developed by You without reference to or use of any Our Information.
If You or any of Your representatives is compelled by applicable law to disclose any of Our Information then, to the extent permitted by applicable law, You shall:
A. promptly, and prior to such disclosure, notify Ship.Cars in writing of such requirement so that Ship.Cars can seek a protective order or other remedy or waive its rights under Section 5; and
B. provide reasonable assistance to Ship.Cars, at Ship.Cars's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If Ship.Cars waives compliance or, after providing the notice and assistance required under this Section 5, You remain required by law to disclose any of Our Information, You shall disclose only that portion of Our Information that You are legally required to disclose.
<!-- -->Collection and Use of Your Information. Certain information collected through or in connection with the Services is subject to our Privacy Policy available at https://ship.cars/legal/privacy-policy. By using and/or providing information to or through the Services, You consent to all actions taken by us in compliance with the Privacy Policy.
Procedures Regarding Claims of Copyright Infringement. Ship.Cars respects the intellectual property rights of others. If You believe that Your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, You may notify our agent as provided in this Section 7. Pursuant to Title 17, United States Code, Section 512(c)(2), Ship.Cars designates Copyright Agent as its agent designated to receive notification of claimed copyright infringement ("Designated Agent"). The address of the Designated Agent is 869 E. Schaumburg Rd., Suite 363, Schaumburg, IL 60194. The telephone number of the Designated Agent is 224-300-5359. The email address of the Designated Agent is Eftim@Ship.Cars.
We may terminate Your use and access to the Service (including Your Entity Account and/or User Account) if we believe that You are infringing the intellectual property rights of others or are aiding or threatening such infringement.
Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that You may not be able to access the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If You access the Content and/or Services from outside the United States, You are solely responsible for compliance with local laws. You also agree that You will comply with all applicable laws, domestic or foreign, including but not limited to the laws and regulations concerning import and export of goods, the Foreign Corrupt Practices Act and other laws prohibiting bribery, nondiscrimination, forced or involuntary labor, and equal opportunity in employment.
Updates to the Agreement. You acknowledge that You are expected to check this page each time You access the Services so that You are aware of any changes, as they are binding upon You. Your continued use of the Content and Services after we post any updated terms of this Agreement will be deemed Your acceptance of any changes to the terms of this Agreement.
Third-Party Materials. The Services may rely upon, display, include, or make available third-party content (including third party data, information, applications, and products, services, and/or materials, and communications, content or materials uploaded, submitted, posted or transmitted by any other party) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Ship.Cars is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, compliance with copyright laws, legality, decency, quality, or any other aspect thereof. Ship.Cars does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
Term and Termination.
Unless we agree otherwise in writing, the term of Subscribing Entity's subscription to use the Services ("Subscription") shall commence on the date Subscribing Entity successfully created an Entity Account and shall continue for one (1) month (the initial one month period is the "Subscription Period"); subject, however, to renewal and earlier termination as provided herein.
Unless we agree otherwise in writing, upon the expiration of the Subscription Period and each Renewal Period, if any, the term of the Subscription shall automatically renew for successive periods of one (1) month each (each such one month period is a "Renewal Period") unless either party gives the other party notice of its intention not to have the Subscription renew at least thirty (30) days prior to the first day of the next Renewal Period.
The term of this Agreement for each End User commences when such End User creates an Entity Account or User Account with the Services and will continue in effect until terminated as set forth in this Section 11.
Ship.Cars, at its sole discretion, may terminate any Subscription, this Agreement, and/or Your right to access and use the Services or any Entity Account or User Account, at any time without notice for any reason including, but not limited to, if
A. You violate the terms of this Agreement;
B. Ship.Cars receives complaints related to Your Entity Account and/or User Account;
C. Ship.Cars believes that You are infringing, or have infringed, the intellectual property rights of others or is aiding or threatening, or has aided or threatened, any such infringement; or
D. Ship.Cars ceases to support the Services, which Ship.Cars may do in its sole discretion.
Any termination by us shall be effective on the date specified in such notice or, if no date is provided, shall be effective immediately.
You agree that, if Your right to access and use the Services or any Entity Account or User Account is terminated, You will not thereafter access, or attempt to access, the Services or such Entity Account or User Account as applicable.
You may terminate Subscribing Entity's Subscription in accordance with the terms of this Section 11 by choosing the termination option in the Services.
Upon termination of a Subscription,
A. all rights granted to Subscribing Entity and its End Users under this Agreement will also terminate, and You must cease all use of the Services and any Entity Account or User Account, unless we authorize You, in writing, to continue accessing Your Entity Account or User Account (in which case such use may be limited but shall remain subject to the terms of this Agreement governing use of the Services, Entity Accounts and User Accounts, and any other applicable terms);
B. all amounts owed by You and Subscribing Entity pursuant to this Agreement or through their use of the Services will be due immediately (and such obligation shall survive termination of the Subscription); and
C. we may delete any and all information, materials and documents from the applicable Entity Account and any User Account created under the Entity Account (though we reserve the right to retain and use such information, materials and documents as necessary to comply with legal obligations, resolve disputes, and enforce the terms of this Agreement).
Termination will not limit any of Ship.Cars' rights or remedies at law or in equity arising from any breach of this Agreement by You or Subscribing Entity. You or Subscribing Entity, as applicable, shall be responsible for all legal costs, expenses and fees incurred by Ship.Cars in the pursuit of such remedies, including without limitation, reasonable attorney fees.
Ship.Cars reserves the right to:
A. Take any action with respect to any use of the Services that we deem necessary or appropriate in our sole discretion, including suspending or terminating access to and use of the Services, if we believe that the use of the Services violates the terms of this Agreement, infringes any intellectual property right or otherwise violates any other right of any person or entity, threatens the personal safety of or may cause damage to users of the Services or the public or that could create liability for Ship.Cars; and
B. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal, improper or unauthorized use of the Services.
Without limiting the foregoing, Ship.Cars has the right to fully cooperate with any law enforcement authorities, court order or other legal process requesting or directing us to disclose the identity or other information of anyone accessing the Services. You waive and hold harmless Ship.Cars and its affiliates, licensees, licensors, and service providers from any claims resulting from any action taken by Ship.Cars during or as a result of its investigations into any illegal improper or unauthorized use of the Services, or in cooperation with law enforcement authorities, any court order or other legal process.
<!-- -->Fees.
Subscribing Entity shall pay to Ship.Cars any fees due for its Subscription and its and its End User's access to and use of the Services, all (a) as agreed upon in a subscription agreement that Subscribing Entity enters with Ship.Cars (a "Subscription Agreement"), if any, or (b) in the event there is no separate Subscription Agreement between the parties governing the fees, in accordance with the fee schedule posted on the Services (as updated from time-to-time). In the event that we issue a free trial to use the Services to Subscribing Entity, no fees shall be due for the term of the free trial.
All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Subscribing Entity will promptly pay, and indemnify Ship.Cars against, all taxes and duties assessed in connection with any such amounts and this Agreement, by any authority within or outside of the U.S., except for taxes payable on Ship.Cars' net income.
Ship.Cars may charge Subscribing Entity interest on the outstanding balance of any amounts overdue hereunder at a rate equal to 1.5% per month (19.56% per annum) or the highest rate permitted by applicable law, whichever is lower. Subscribing Entity will reimburse Ship.Cars for all reasonable costs and expenses incurred (including, without limitation, reasonable attorneys' fees) in collecting any overdue amounts.
All amounts payable hereunder must be made in U.S. dollars. Subscribing Entity shall make all payments via credit card, debit card or by other means that we may permit from time-to-time.
If Subscribing Entity designates a credit card or debit card to make payments, Subscribing Entity hereby agrees that Ship.Cars (or its applicable payment processor) is authorized to charge Subscribing Entity's designated card on the applicable due date. If Ship.Cars (or its applicable payment processor) does not receive payment from the applicable card issuer or its agents, Subscribing Entity agrees to pay all amounts due immediately upon demand. Subscribing Entity agrees to keep the account number and expiration date of Subscribing Entity's designated card and Subscribing Entity's billing address updated at all times.
Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES AND CONTENT ARE PROVIDED "AS IS" AND SHIP.CARS (ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS) HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT SHIP.CARS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SHIP.CARS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
In the event that Ship.Cars discovers a material and continuing non-conformity, defect or error in the Services, Ship.Cars will take commercially reasonable corrective actions to correct such non-conformity, defect or error, but makes no commitment or guaranty as to the timing of such correction.
Ship.Cars presents information in many ways, including on our websites and via our Services, as a service to You. Our goal is to provide accurate and timely information, but we make no warranty or guarantee concerning accuracy, reliability, completeness, or suitability, and provide all information, including any geotagging, geo-location, and global positioning system(s) ("GPS") information, AS IS. Use of the Services is at Your own risk. You are responsible for verifying the accuracy of all User Content and of all information provided to You by the Services. You must make Your own determination as to safety, authority and/or business practices.
Posted/Transmitted Content.
By uploading, submitting, posting or transmitting communications, content and materials (collectively, "User Content") to or via the Services, You hereby (a) grant Ship.Cars a perpetual, sublicensable, royalty-free license to transmit, display, reproduce, distribute, and use User Content as necessary to provide the Services and Content, and (b) represent and warrant that You own or otherwise have the necessary rights and consents in and relating to the User Content to upload, submit, post or transmit such User Content to or via the Services, and to grant the rights granted herein.
Ship.Cars reserves the right to remove User Content from the Services if, in its determination, the User Content violates the terms of this Agreement (or any other terms governing User Content or the use of the Services). Additionally, Ship.Cars may, in its discretion, permanently delete all copies of User Content two (2) years after the submission, posting or transmission of such User Content.
In addition to any other rules or regulations that we may post in connection with the Services, You agree that You shall not upload, submit, post, or transmit through any website of Ship.Cars or the Services any User Content which:
A. restricts or inhibits any other user from using and enjoying the Services;
B. is fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, scandalous, inflammatory, sexually explicit or indecent;
C. constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
D. violates, plagiarizes or infringes the rights of third-parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right;
E. contains a virus, spyware, or other harmful component;
F. contains embedded links, advertising, chain letters or pyramid schemes of any kind; or
G. constitutes or contain false or misleading indications of origin, endorsement or statements of fact.
You further agree not to:
A. use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
B. use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Services, including its ability to engage in real-time activities through the Services;
C. use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material available via the Services;
D. use any manual process to monitor or copy any of the material available via the Services or for any other unauthorized purpose without our prior written consent;
E. use any device, software, or routine that interferes with the proper working of the Services;
F. introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
G. attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which any Services are stored, or any server, computer, or database connected to the Services;
H. attack the Services via a denial-of-service attack or a distributed denial-of-service attack;
I. otherwise attempt to interfere with the proper working of the Services;
J. modify copies of any materials from the Services;
K. make any use of any Content from the Services for any purposes except expressly contemplated herein;
L. delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services; or
M. access or use for any commercial purposes, other than Your own internal business purposes, any part of the Services or Content.
You alone are responsible for the User Content and consequences of any of Your activities.
As between You and Ship.Cars, You are and will remain the sole and exclusive owner of all right, title and interest in and to all User Content, including all intellectual property rights relating thereto, subject to the rights and permissions granted in this Section 14.
Security/Information.
Ship.Cars will employ commercially reasonable security measures, but does not provide any representations or warranties about the security of the Services and User Content.
Ship.Cars may store certain User Content on third party services (e.g., Google Cloud), but that does not replace the need for You to maintain regular data backups, and Ship.Cars has no obligation or liability for any loss, alteration, destruction, damage, corruption of User Content.
You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of information, and for maintaining a means external to the Services for any reconstruction of any lost User Content.
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials for the Services and protect against any unauthorized access to or use of the Services; and (b) control the content and use of User Content, including the uploading or other provision of User Content to or via the Services.
End User acknowledges that the Services are not designed with security and access management for processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). You shall not, and shall not permit any other person or entity to, provide any Prohibited Data to, or process any Prohibited Data through, the Services. Customer is solely responsible for reviewing all User Content and shall ensure that no User Content constitutes or contains any Prohibited Data.
Limitation of Liability. To the fullest extent permitted by applicable law, in no event will Ship.Cars or its affiliates, or any of its or their respective licensors or service providers, have any liability arising from or related to Your use of or inability to use the Content and Services for:
Personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction, or any other consequential, incidental, indirect, exemplary, special or punitive damages; or
Direct damages in amounts that in the aggregate exceed (other than as may be required by applicable law) the greater of (A) fifty dollars (\$50.00) or (B) the total fees paid by Subscribing Entity to Ship.Cars during the preceding month;
The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence), or otherwise, and regardless of whether such damages were foreseeable or the Subscribing Entity was advised of the possibility of such damages.
Indemnification. By using the Services, You agree to indemnify, defend, and hold harmless Ship.Cars, its affiliates, and its and their officers, directors, employees, agents, successors, and assigns, from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to
Your misuse or unauthorized use of the Services,
Your breach or alleged breach of this Agreement and any other terms governing the Services and Your access to and use thereof,
Your User Content, including, without limitation, claims that the User Content infringes or otherwise violates any privacy or trademark, copyright, or other intellectual property or proprietary right of any third party, or constitutes libel and slander; and/or
Your obligations to any third party or failure to comply with any obligations imposed on by any agreement with such third party or any applicable industry and professional standards, and any other transactions initiated or conducted with others via the Platform.
Export Regulation. The Services may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You represent and warrant:
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;
You are not listed on any U.S. government list of prohibited or restricted parties,
You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation; and
You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
US Government Rights. The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are an agency of the U.S. Government or any contractor therefor, You receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
Severability. If any provision of this Agreement is contrary to law or otherwise unenforceable under any applicable laws or regulations, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law and Dispute Resolution.
This Agreement is governed by and construed in accordance with the Federal Arbitration Act and the internal laws of the State of Illinois (without giving effect to any choice or conflict of law provision or rule thereof).
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE BREACH, TERMINATION OR VALIDITY THEREOF, SHALL BE FINALLY RESOLVED BY ARBITRATION. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. The arbitral tribunal may not consolidate more than one person\'s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND SHIP.CARS ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
The parties further agree that, in the event that the agreement to arbitrate above is found to be unenforceable, all actions or proceedings arising in connection with this Agreement shall be litigated in the state or federal court located in Cook County, Illinois. Each party waives any right it may have to assert the doctrine of forum non conveniens or to otherwise object to venue with respect to any action or proceeding brought pursuant to this paragraph. The parties further agree to submit themselves to the personal jurisdiction of any court or tribunal authorized by this Paragraph.
Time Limitation on Claims. Any cause of action or claim You may have arising out of or relating to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.
Billing Claims. Any and all disputes related to billing must be presented to Ship.Cars within thirty (30) days of the invoice date or the date the applicable fees were charged to Your credit or debit card. Direct all inquiries to Ship.Cars at [(844) 522-7744]{.underline}, or by e-mail to [operations@ship.cars]{.underline}.
Attorney's Fees. In the event Ship.Cars retains legal counsel to enforce this Agreement against You, You shall be required to pay attorney's fees, including fees on appeal, whether or not suit or action is commenced.
Entire Agreement. This Agreement, our Privacy Policy, and the Subscription Agreement (if any) and any updates to any of the foregoing, constitute the entire agreement between You and Ship.Cars with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services. In the event of a conflict between any of the foregoing, the Subscription Agreement shall control. Ship.Cars may, from time to time, at our sole discretion, make changes to certain terms of this Agreement. Notification of any changes will be made available on the Services and/or the Ship.Cars website or any successor site explicitly designated by us. Said changes shall be accessible via a link entitled LoadMate Terms & Conditions, in advance of any such change. You agree that Your continued use of the Services after any changes shall constitute Your agreement to such changes.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
Support. Any questions or complaints with respect to the operation of the Services should be directed to Ship.Cars at the contact information below:
Ship.Cars USA, LLC
1105 N. Market Street, Suite 1300
Wilmington, DE 19801
Telephone: [(844) 522-7744]{.underline}.
Email Address: [support@ship.cars]{.underline}