Effective as of September 20th, 2022
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.
Amendment of Terms
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.
Obligations and Prohibitions
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.
Products and Services
- FreightSmith’s website (“Site”) provides its users and visitors with a general understanding of the Services. The materials on the Site have been provided for informational purposes only and is intended, but not promised or guaranteed, to be current and correct. FreightSmith may update its offerings of Services on the Site and the Services available may be mispriced, described inaccurately or unavailable. FreightSmith cannot and does not guarantee the accuracy or completeness of any information, including prices, Service specifications and availability and reserves the right to change or update such information to correct errors, inaccuracies or omissions at any time without prior notice. FreightSmith does not assume any responsibility for any mistakes or inaccuracies in the descriptions of the Services or other information appearing on the Site.
- In connection with your use of the Services, you agree that all information you provide to FreightSmith will be accurate and current at all times. If FreightSmith believes that any such information is inaccurate, it reserves the right to suspend your account and refuse any and all use of the Services. You are solely responsible for maintaining the confidentiality of your account information, securing your username and password, and for all activities and liabilities associated with or occurring under your account. You agree to notify FreightSmith immediately if you believe there has been an unauthorized use of your account. You may not transfer your account to any third person and you may not use any third person’s account at any time.
- You are solely responsible for obtaining the data network access and all software, programs and other equipment, and all fees for the aforementioned, required to access and use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and applications and any updates thereto.
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.
- You agree to grant FreightSmith permission to track your location and share such location information with third parties solely in connection with FreightSmith’s provision of the Services.
- Except as otherwise provided herein, FreightSmith will not sell or disclose your personal information to any third party, except for any information required in order to comply with a court order, law or legal process. To protect any of your personal information that you disclosure through your use of the Services, FreightSmith takes reasonable precautions and uses its best efforts to keep it secure.
The following disclosure apply to you in the event a Service Card is issued to you in connection with your use of the Services:
- The Service Card shall be subject to monetary limits established by FreightSmith and FreightSmith shall not be responsible nor liable in the event you attempt to exceed any such limits.
- You acknowledge and agree that any and all information related to transactions made with a Service Card may be shared with and viewed by FreightSmith and the issuer of the Service Card (“Issuer”).
- The Service Card may be (but is not required to be) downloaded into a mobile wallet. In the event the Service card is downloaded into a mobile wallet, the use of the Service Card shall be subject to any terms and conditions of such mobile wallet provider.
- FreightSmith and the Issuer make no representations or warranties of any kind concerning any mobile wallet. Your ability to download the Service Card into a mobile wallet does not constitute an endorsement from FreightSmith or the Issuer of such mobile wallet and neither FreightSmith nor the Issuer shall be responsible for the functioning or lack of function of such mobile wallet.
- The Service Card is and shall remain the property of the Issuer and the Issuer and/or FreightSmith, for any reason and without notice to you, may terminate your ability to use the Service Card, or terminate the functionality of the Service Card, at any time.
- FreightSmith and Issuer are not responsible for any damages arising from your inability to use the Service Card, for any and all reasons or causes.
Disclosures and Notices
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.
Disclaimer of Warranties
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.
Limitation of Liability
- IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WILL FREIGHTSMITH (INCLUDING ANY OF ITS PARENT, SUBSIDIARY OR AFFILIATE ENTITIES) OR ANY OF THEIR DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “PROTECTED PARTY/IES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES, YOUR PROVISION OF INFORMATION VIA THE SERVICES OR IN CONNECTION WITH FREIGHTSMITH’S PROVISION OF THE SERVICES, ANY CONDUCT OR CONTENT OF THIRD PARTIES, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL THE PROTECTED PARTIES BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF YOU OR ANY OTHER USER OF THE SERVICES. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) ARISING FROM THESE TERMS OR YOUR USE OF THE SERVICES, EXCEED, IN THE AGGREGATE, THE AMOUNT OF FIVE HUNDRED U.S. DOLLARS ($500.00).
- YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, OR THE TERMS, MUST BE FILED WITHIN ONE (1) YEAR FROM THE DATE THAT SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR BE FOREVER BARRED.
- FREIGHTSMITH DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER OF THE SERVICES CONTENT OR THIRD-PARTY CONTENT AVAILABLE OR LINKED TO BY THE SERVICES. FREIGHTSMITH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Dispute Resolution – Arbitration
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.
Term and Termination
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:
3459 Ringsby Court, Suite 107
Denver, CO 80216 email@example.com