Effective as of September 20th, 2022
These Terms of Use (“Terms”) govern and control your use and access of the mobile application, website, products, and services (the “Services”) made available by FreightSmith, LLC and its parent, subsidiary, and affiliate entities (collectively “FreightSmith”). Some of the Services may be subject to additional or supplemental terms and conditions, such as policies for a particular program or activity, and such supplemental terms are set forth on FreightSmith’s website or otherwise disclosed to you in separate disclosures (“Service Terms and Conditions”). Please read the Terms carefully before accessing and using the Services. Your use of the Services subject to the Service Terms and Conditions and governed by such Service Terms and Conditions, which are incorporated into these Terms by reference. In the event of a conflict between these Terms and the Service Terms and Conditions, the provisions of the Service Terms and Conditions shall govern and control.
BY USING OR ACCESSING ANY OF THE SERVICES, YOU ARE DEEMED TO HAVE READ, UNDERSTOOD, AGREED AND CONSENTED TO THE TERMS IN ELECTRONIC FORM. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
FreightSmith reserves the right, at its sole discretion, to amend, modify or replace these Terms, or a portion thereof, at any time. Any such amendments or updates to the Terms shall be effective as of the date they are published on FreightSmith’s website. By continuing to access or use the Services subsequent to the publication of the updated Terms, you agree to be bound by such Terms. If at any time you no longer consent or agree to the Terms, you must cease your use of the Services in order to withdraw your consent and agreement.
Subject to your compliance with these Terms, FreightSmith grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services. Any rights not expressly granted herein are reserved by FreightSmith.
The Services and all rights therein, as well as the trademarks, trade names, trade dress, logos and designs incorporated and included therein, are the sole property of FreightSmith, or its suppliers or licensors. All materials and components of the Services, including but not limited to written content, software, code, photographs, graphics, images, illustrations, marks, logos, are protected by patent, copyright, trademark and other intellectual property laws. You agree not to modify, reproduce, retransmit, distribute, disseminate, sell, publish, create derivative works of, broadcast, circulate or in any way exploit any of the Service materials or content, in whole or in part, without the express written consent of FreightSmith. Unless explicitly stated herein, nothing in the Terms shall be construed as conferring any license or any other interest in and to FreightSmith’s
intellectual property rights. Your misuse of FreightSmith’s intellectual property, including its trademarks, trade names, trade dress, logos and designs is strictly prohibited.
You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Services. You may not use the Services to facilitate any illegal transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public FreightSmith systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, or FrieghtSmith’s website; (iii) act as service bureau or pass-through agent for the Services with no added value to Customers; (iv) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (v) reverse engineer or attempt to reverse engineer the Services; or (vi) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users. FreightSmith, at its sole and absolute discretion, may investigate and/or terminate your account if you misuse the Services or behave in any way that FreightSmith regards as inappropriate or unlawful.
FreightSmith does not represent nor guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
The following disclosure apply to you in the event a Service Card is issued to you in connection with your use of the Services:
By registering for an account with FreightSmith, you agree that such registration constitutes your electronic signature, and you consent to the electronic provision of all disclosures and notices from
FreightSmith (“Notices”). You also agree that your electronic consent will have the same legal effect as a physical signature. You further agree that FreightSmith can provide Notices regarding the Services to you through our website or through the Services, or by mailing Notices to the email or physical addresses identified in your FreightSmith account. Notices may include notifications about your FreightSmith account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.
By registering for an account with FreightSmith, you also authorize FreightSmith to provide notices and communications to you via text message or notifications (including receipts) through the mobile application. Standard text or data charges may apply to such notices, notifications and communications. You may disable and opt-out of text message and in-app notifications in the Dashboard by following instructions provided in the message or by written notice to FreightSmith. However, by disabling text messaging and in-app notifications, you may be disabling important aspects and features of the Services.
You agree to defend, indemnify and hold FreightSmith (including its parent, subsidiary and affiliate entities, including but not limited to Universal Chain Companies, Inc.) and their directors, officers, members, managers, employees, contractors and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; and (iii) your transportation, unloading and delivery of any shipment. FreightSmith reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY REGARDING UPTIME OR UNINTERRUPTED ACCESS, AVAILABILITY, ACCURACY, OR USEFULNESS, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FREIGHTSMITH HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. MAPPD ALSO ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT, MOBILE DEVICE, OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SERVICES. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR ACCESS OR USE OF THE SERVICES REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively “Disputes”) will be settled by binding arbitration between you and FreightSmith, except that FreightSmith reserves and retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of FreightSmith’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and FreightSmith are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and FreightSmith otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
The arbitration will be administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules then in effect. Prior to initiating an arbitration, you and
FreightSmith each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice to FreightSmith must be sent to FreightSmith, LLC, 3459 Ringsby Court, Suite 107, Denver, CO 80216. Neither party shall initiate arbitration until thirty
(30) days after the notice has been sent.
The arbitration shall be conducted in Denver, Colorado, with one arbitrator who will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
FreightSmith reserves the right to terminate, change, suspend or discontinue any of the Services at any time, without notice. FreightSmith may restrict, suspend or terminate your account or your access to the Site or the Services if FreightSmith reasonably believes you are in breach of any of these Terms or any applicable law, you are an infringer of FreightSmith’s intellectual property rights, or for any other reason without notice or liability.
The term of this Agreement shall continue indefinitely until terminated in accordance with the terms hereof. You may terminate this Agreement at any time for any reason upon written notice to FreightSmith, provided however, the following Sections shall survive the termination of this Agreement: Indemnification, Disclaimer of Warranties, Limitation of Liability, Dispute Resolution, Miscellaneous, Confidentiality and Proprietary Rights.
You may not disclose any confidential information (including trade secrets) that you may receive from FreightSmith or in connection with its provision of the Services to any third party without the prior written consent of FreightSmith and you further agree to protect any such confidential information received with a reasonable degree of care.
FreightSmith only collects contact, personal and commercial information directly from you, or from your use of the Services, and through no other means or sources. FreightSmith will only use your contact, personal and commercial information in connection with its provision of the Services.
FreightSmith will take reasonable precautions and use its best efforts to keep your personal information secure. Your personal information will be retained by FreightSmith for as long as necessary to provide the Services and to comply with legal obligations, such as tax and sales laws, for the period required in connection with such obligation.
In certain instances, FreightSmith may disclose your information in order to comply with any court order or law or legal process, including responding to any government or regulatory request. FreightSmith may also provide any of its third-party service providers with your personal information, but only to the extent necessary for them to assist with FreightSmith’s provision of the Services.
FreightSmith will not sell or disclose your personal information to any third party, except for the information FreightSmith discloses to its third-party service providers or in order to comply with a court order, law or legal process, as described above.
You may request access to your personal data, an electronic copy of your personal data (portability), and correction of your personal data if it is incomplete or inaccurate. You may also request that we delete your personal information in certain circumstances provided by applicable law. FreightSmith may not delete your personal data if one of the following exceptions applies: i) to complete a transaction for which the personal information was collected or perform a contract, order or agreement that we have with you or any other party that provided such personal information in connection with a contract, order or agreement; or ii) to protect against fraud or illegal activity or to comply with applicable law or a legal obligation. Please not that if FreightSmith deletes your personal information, some of the Services may be adversely affected.
FreightSmith will collect, use, and store precise and approximate location information from your device when you use the location related features like “Driver Check-in” & “Driver PreCheck.”
FreightSmith will collect specific device information when you install, access, or use its services. This information includes device id, model, operating system, and app version for use in analytics and push notifications.
These Terms and your use of the Services shall be governed by, and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws provisions. Subject to the provisions set forth in the “Dispute Resolution – Arbitration” section set forth above, you hereby agree to submit to the exclusive jurisdiction of the state and federal courts in the State of Colorado and hereby waive any jurisdictional, venue or inconvenient forum objections to such courts. You agree to be bound by any non-appealable judgment rendered thereby in connection with the Terms. In any action to enforce the Terms, the prevailing party will be entitled to an award of its reasonable costs and attorney fees incurred therein.
Whenever possible, each provision of the Terms shall be interpreted in such a manner as to be enforceable under applicable law. However, if any provision of the Terms shall be deemed unenforceable under applicable law by a court having jurisdiction, such provision shall be unenforceable only to the extent necessary to make it enforceable without invalidating the remainder thereof or any of the remaining provisions of the Terms.
The Terms constitute the entire agreement between FreightSmith and yourself with respect to the subject matter of the Terms, and supersedes any and all oral and written proposals, representations, understandings and agreements previously made or existing with respect to such subject matter.
No course of action or failure to act by FreightSmith shall constitute a waiver by FreightSmith of any right or remedy under the Terms, and no waiver by FreightSmith of any right or remedy under the Terms shall be effective unless made in writing.
All notices or other communications required or permitted by this Agreement, except as otherwise provided for herein, shall be effective upon receipt; will be in writing; and will be transmitted electronically or mailed by registered or certified mail, return receipt requested. If the notice or communication is to you, FreightSmith shall provide such notice to the email address or physical address you have provided to it. If the notice or communication is to FreightSmith, it shall be submitted to the following:
FreightSmith, LLC
3459 Ringsby Court, Suite 107
Denver, CO 80216 info@freightsmith.net