THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR ANY USER’S UTILIZATION OF THE SERVICE AT ALL TIMES. BY ACCESSING OR USING THE SERVICE AT ANY TIME, USER IS ACCEPTING THIS AGREEMENT, ON BEHALF OF USER AND ANY PERSON, COMPANY, ENTITY OR ORGANIZATION THAT USER REPRESENTS OR IS AN AGENT OF, AND USER HEREBY REPRESENTS AND WARRANTS THAT USER HAS THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF USER AND THE PERSON, COMPANY, ENTITY OR ORGANIZATION THAT USER REPRESENTS OR IS AN AGENT OF. USER MAY NOT ACCESS OR UTILIZE THE SERVICE OR ACCEPT THIS AGREEMENT IF USER DOES NOT HAVE PROPER AUTHORITY TO DO SO AND IS NOT AT LEAST 18 YEARS OLD. USER’S ACCESS OR USE OF THE SERVICE WITHOUT PROPER AUTHORITY OR PERMISSION SHALL NOT PRECLUDE ANY LIABILITY, FAULT OR RESPONSIBILITY OF USER AND/OR THE PERSON, COMPANY, ENTITY OR ORGANIZATION THAT USER REPRESENTS OR IS AN AGENT OF FOR ANY VIOLATIONS OF THIS AGREEMENT.
IF USER DOES NOT AGREE WITH ANY OR ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE AT ANY TIME AND FOR ANY PURPOSE WHATSOEVER.
THIS AGREEMENT REQUIRES THE SOLE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CONNECTION WITH AGGDIRECT, THE SERVICE OR THIS AGREEMENT, RATHER THAN OTHER LEGAL MECHANISMS TYPICALLY AVAILABLE TO PARTIES, SUCH AS JURY TRIAL OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO USER IN THE EVENT OF A DISPUTE. BY USING THE SERVICE, USER ACKNOWLEDGES THE RELINQUISHMENT OF THE AFOREMENTIONED RIGHTS AND RIGHTS WAIVED ELSE WHERE IN THIS AGREEMENT.
1. SERVICE DESCRIPTION
1.1. General. AggDirect helps to connect Contractors and Truckers for the Shipment of Materials by providing a platform that allows Contractors to place a Shipment order through the Service for Materials to be picked-up and/or delivered by an assigned Trucker from or to a specified or designated location. Based on the details of the desired Shipment provided by the Contractor, AggDirect sends out a request via the Service that matches and assigns the pick-up/delivery tasks (as the case maybe) with one or more Truckers. Upon assignment of a Trucker to the Contractor by the Service, each Trucker can decide to either accept or decline such Shipment request(s). Depending on the number and location of Shipment requests, each Trucker shall be assigned a task by AggDirect through the Service or directly, and no Trucker may accept Shipments directly from Contractor without using or going through AggDirect and/or the Service. A Trucker accepting a Shipment directly from Contractor without using or going through AggDirect and/or the Service shall be deemed a material breach of this Agreement and such other agreements between Trucker and AggDirect. To the extent a User is a Trucker, the provisions in this Agreement regarding Truckers shall also apply to you in addition to all provisions applicable to a User. To the extent User is a Contractor, the provisions in this Agreement regarding Contractors shall also apply to you in addition to all provisions applicable to a User. To the extent you are a person, company, entity or an organization that User is representing or an agent of, the provisions in this Agreement regarding Users shall apply to you as well as those provisions applicable to a Trucker or Contractor, as the case may be depending on the nature of the person, company, entity or organization you represent or are an agent of in accessing or using the Service. For the avoidance of doubt, AggDirect provides the Service for requesting the pick-up and/or delivery of Shipments, assignment of pick-up and/or delivery of Shipments requests to one or more Truckers who shall perform the assigned task, optimization of routes in certain limited circumstances, tracking of pick-up and/or delivery of Shipments being transported by a Trucker, the billing service described in Section 5 for certain Users approved by AggDirect, and/or such other features and functionality described in this Agreement, and may from time to time, be added by AggDirect to the Service. Please carefully read the disclaimer in Section 11 for more information about User responsibilities and obligations related to access and use of the Service.
1.2. Shipment Requests.Contractor may place a request through the Service for Materials to be picked-up from and/or delivered to a specified location by an assigned Trucker (“Shipment(s)“). Without limitation, Contractor shall completely and accurately provide the following information to AggDirect through the Service: (1) origin and/or destination addresses of the Materials to be transported by the Trucker(s) assigned the Shipment, (2) the requested date and pickup time of the Shipment within the time period parameters prescribed by the Service, (3) a description of the Materials in the Shipment from the options provided, including but not limited to type, weight, hazards, risks, pick-up/delivery instructions, transportation or storage requirements (e.g., temperature, containment, etc.), and (4) any other relevant or material information about the Shipment that if not otherwise disclosed in writing prior to the pick-up/delivery may have an adverse effect on the successful Shipment of the Materials, as desired by Contractor. Any failure of Contractor to timely and accurately provide or disclose in writing to AggDirect the aforementioned information, including any known or reasonably suspected conditions or hazards of the Materials shall be the sole responsibility, liability, risk, burden and cost of Contractor and AggDirect shall not be responsible or liable for the same. AggDirect shall, with reasonable best efforts, assign the requested Shipment to an available Trucker also using the Service. Once the Shipment is accepted for assignment by AggDirect, the details of the Shipment will be provided to the Trucker as they were provided to AggDirect by Contractor. Contractor may cancel a Shipment at any time prior to it being accepted by a Trucker; otherwise, any failure to timely cancel a Shipment will result in penalty or charges to Contractor, including full payment of the Shipment or the cost of the Trucker. In the event AggDirect does not timely receive a written cancellation request for a Shipment by the Contractor, AggDirect will continue to provide the Service, including to review and assign Shipments to Truckers based on the requested pick-up and/or delivery schedule by Contractor, and the availability of active Truckers utilizing the Service. Once Shipments are assigned to a Trucker, both Contractor and Trucker (including their authorized representatives with access to the Service) may track Shipment, pick-up, and delivery status. Each Contractor and Trucker is responsible for providing their own smart phone or tablet equipped with the proper specifications for accessing and using the Service, unless AggDirect otherwise explicitly indicates in writing that one shall be provided or delivers one to such party. AggDirect may also, from time to time, as the circumstances require and in its sole discretion, connect Contractor and Truckers utilizing the Service outside of the Service.
1.3. Completing the Shipment.Contractor must issue and provide the Trucker a bill of lading (“ Bill of Lading”) for each Shipment. The Bill of Lading must contain, at minimum, (1) the names and addresses of the Contractor and its authorized representative who is to accept and sign for the Shipment (and if required, the name and address of the Trucker), (2) the origin and destination addresses of the Shipment, (3) the requested pickup and delivery dates and times, (4) description of the Materials being shipped (including, type, weight and any special conditions), and (5) any other relevant terms and conditions. Once the Shipment has been completed, Trucker will promptly upload to the Service a picture, as proof of delivery, signed by the authorized recipient of Contractor (“Proof of Delivery”) and send the original to AggDirect via postal mail.To be clear and avoid any confusion, Contractor, not AggDirect, shall issue the Bill of Lading. Contractor hereby agrees to issue any Bills of Lading to Trucker at the appropriate time. Trucker will direct any questions or concerns regarding the Bill of Lading to the Contractor. Trucker hereby agrees to make best efforts to adhere to Contractor’s routing instructions, which shall be set forth in the Service as provided by Contractor. Contractor hereby acknowledges that the United States Department of Transportation (“DOT”), state Department of Transportation, local jurisdictions, traffic and signage (e.g., detours, construction, etc.), road conditions, local law enforcement or other authorities, and equipment restrictions may prevent Trucker from fully adhering to Contractor’s routing instructions. In such event, Trucker may use any reasonably prudent alternative or manner to fulfill the Shipment, and if this is impracticable or substantially affects the routing instructions, Trucker shall immediately contact its designated point of contact with Service to inform Contractor in order to obtain alternative routing instructions or such other solution from Contractor.
2. TRUCKER TERMS, REPRESENTATIONS AND WARRANTIES
2.1. Trucker Minimal Requirements.As a Trucker, User hereby represents, warrants and covenants that User has provided AggDirect:
(a) a copy of each Driver’s active and valid driver’s license and medical card;
(b) a completed W-9 form;
(c) a copy of their current US DOT number;
(d) for federally-licensed Truckers, a U.S. Department of Transportation Safety Rating, evidencing that User does not have Unsatisfactory or Conditional status; and
(e) prior to moving User’s first Shipment with AggDirect, valid certificate(s) of insurance evidencing policy limits in accordance with applicable law, and in no event less than the coverage and limit amounts set forth in Section 2.2 below.
2.2. Insurance. User hereby further represents, warrants and covenants that it shall at all times under this Agreement maintain and keep current insurance coverage and policy limit amounts as follows:
(a) Commercial General Liability. This coverage includes but is not limited to Premises, Operations, Independent Contractors, Products/Completed Operations, Broad Form Property Damage, Contractual Liability (including, liability for Employee Injury assumed under a contract), and Explosion, Collapse and Underground Coverage.
Occurrence Form with limits not less than:
(1) General Aggregate: $2,000,000
(2) Bodily Injury: $1,000,000 each person
$1,000,000 each occurrence
(3) Property Damage: $1,000,000 each occurrence
$2,000,000 annual aggregate
(4) Products/Completed Operations: $1,000,000 annual aggregate
(5) Each Occurrence: $1,000,000
(b) Comprehensive Automobile Liability. All coverage to include:
(1) All vehicles used while rendering any shipment and transportation services to a Contractor or any party using the Service or AggDirect in any way, including owned, non-owned, leased and hired vehicles.
(2) Contractual Liability Coverage (including, Liability for Employee Injury assumed under a Contract).
(3) Bodily Injury: $1,000,000 each person
$1,000,000 each occurrence
(4) Property Damage: $1,000,000 each occurrence
(c) Workers’ Compensation and Employers Liability as required by federal, state and local statute.
(c) User carries workers’ compensation insurance or equivalent as required by applicable law, and if User does not carry workers’ compensation insurance, it is because User is specifically exempted from a legal requirement to carry it.
(d) User has procured insurance from companies maintaining a rating of B+ or higher.
(d) User will list AggDirect, including its owner(s) and any designated representative(s) required at any time by AggDirect, as an additional insured on User’s Auto Liability and Product Liability insurance policies and, upon request, promptly provide copies of all policies and endorsements, including uploading User’s insurance card or certificate of insurance into the Service. AggDirect shall be listed as follows:
10610 Rhode Island Avenue,
Beltsville, MD 20705
(e) User will ensure that AggDirect is provided prior written notice of cancellation or modification of any insurance required under this agreement at least thirty (30) days in advance of any cancellation or modification of the required insurance. Without limitation, Trucker, as User, agrees to indemnify, defend and hold harmless AggDirect (and its owners, directors, officers, employees, advisors, partners and agents) against any and all claims, actions, proceedings, damages, losses, judgments and such other matters (including, court costs and attorneys’ fees) brought by or from any party, at any time, arising out of or related to (i) any failure by User to maintain the above required insurance or to properly and timely notify AggDirect of such failure or lapse in the required insurance, as stated herein, (ii) any injury or death of a person or damage to or loss of any property of any party, and (iii) any acts, omissions, negligence or misconduct of User. This provision shall apply to all claims, actions, suits, proceedings, damages, losses and judgments regardless of the AggDirect’s own acts, negligence, performance or failure to perform any function under this Agreement or in connection with the Service, including the offering and maintenance of the Service, whether based upon active or passive negligence, contribution, indemnification, warranty or strict or product liability on the part of AggDirect, its owners, directors, advisors, employees, agents, representatives or contractors. For the avoidance of doubt, the foregoing indemnification shall also cover any and all claims, actions, suits, proceedings, damages, losses and judgments against AggDirect commenced or asserted by any party, including but not limited to User’s owners, directors, employees, agents and representatives.
(f) User’s Automobile Liability insurance covers all automobiles User will use to perform services and assigned tasks under this Agreement.
(g) User’s Automobile Liability insurance includes an MCS-90 endorsement if required by User’s state or specific carrier authority.
(h) User’s insurance covers contractual liability assumed under these Terms of Service.
(i) User shall not accept any Shipments or perform any services whatsoever which are excluded by User’s insurance policies. User shall be solely responsible for declining to accept any Shipments or tasks assigned by AggDirect or the Service which are not covered by User’s insurance. User shall promptly notify AggDirect in writing of any Shipment exclusions prohibited by User’s insurance. User shall be solely liable if it accepts any Shipments or tasks assigned by AggDirect or the Service which are not covered by User’s insurance.
2.3. Compliance with Laws and Regulations.Trucker, as User, hereby represents, warrants and covenants that:
(a) User is duly authorized to provide transportation services as a contract carrier of Materials in the jurisdiction registered to operate in and desires to provide transportation services for Shipments, as provided in this Agreement.
(b) User currently, and shall during all periods User transports Shipments through the Service, have all applicable licenses, permits, registrations, approvals and authority under state, local and federal law to provide the transportation services subject to this Agreement, and such authority shall cover the Materials, geographical scope, and special Contractor instructions or requirements related to all transportation services User provides.
(c) User will comply with all applicable local, state and federal laws related to the provision of transportation services hereunder, including without limitation those of DOT.
(d) To the extent User shall handle intermodal shipments, User has executed and is in compliance with a current Uniform Intermodal Interchange Agreement (“UIIA”), and will promptly provide a copy of the UIIA to AggDirect upon request.
2.4. Safety.Trucker, as User, hereby represents, warrants and covenants that:
(a) User will not at any time accept and/or transport Shipments if its rating is Unsatisfactory or Conditional with DOT or if it receives a negative safety evaluation from any local, state or provincial authority with jurisdiction over User’s operations.
(b) User will immediately notify AggDirect if its safety rating with DOT is Unsatisfactory or Conditional, or if it otherwise receives a negative safety evaluation from a local, state or provincial authority with jurisdiction over User’s operations.
(c) User shall at all times strictly comply and abide by AggDirect’s safety rules provided to User by an authorized representative of AggDirect or published via the Service. In the event of a conflict between AggDirect’s safety rules and local, state and federal laws and regulations governing the safety of freight transport and vehicles, such local, state and federal laws and regulations shall govern.
2.5. Equipment.With respect to the equipment Trucker, as User, utilizes to perform transportation services in connection with the Service, User hereby represents, warrants and covenants that:
(a) User will, at its sole cost and expense and at all times, furnish all equipment required for the performance of transportation services under these Terms of Service, and pay all expenses related to the use or operation and maintenance of such equipment (including any fines, penalties or fees).
(b) User will provide equipment that is in compliance with all applicable governmental regulatory and safety standards, testing, requirements, licensing, titling, permits and registration, and sufficient in quality and quantity to meet the transportation needs of each Shipment User agrees to transport and all safety requirements hereunder.
(c) If User rents or leases a smart phone or tablet device from AggDirect and such smart phone or tablet device is damaged, stolen or lost while in the possession of such User, such User’s payment from AggDirect for work performed shall be reduced by the cost of the device or $500, whichever is greater, in order to replace the smart phone or tablet device and to reimburse AggDirect for any related expenses.
2.6. Employees And Services.With respect to any and all of User’s employees, agents or contractors who carry out or perform any services for or on behalf of User by accessing or utilizing the Service (“User Personnel”), Trucker, as User, hereby represents, warrants and covenants that:
(a) User shall be solely responsible and liable for User Personnel employed or contracted by it who access or utilize the Service. User shall be responsible for ensuring User Personnel properly access and utilize the Service, as provided in this Agreement. Further, User shall ensure all User Personnel are properly trained on accessing and using the Service, including but not limited to reading all instructions and attending training sessions, among other things.
(b) User shall pay any and all User’s Personnel’s wages and insurance where applicable, including, but not limited to, workers’ compensation insurance.
(c) User shall be solely responsible for supervising all User Personnel, including, without limitation, ensuring its employees’ work hours are in compliance with regulations under applicable local, state and federal law.
(d) User has sole responsibility for any and all acts and omissions of User Personnel, including but not limited to User’s drivers, and such drivers’ compliance with all applicable local, state and federal laws and regulations.
(e) User is solely responsible for the interviewing, hiring, training, supervising, disciplining and termination of User Personnel, including, but not limited, to its drivers and other employees.
(f)User shall at all times utilize User Personnel and other operating personnel who are licensed or certified to perform all services for which they are engaged or undertaking by accessing or using the Service or otherwise in connection with the Service. Any failures or lapses in the User and User Personnel’s licenses or certifications required by law or this Agreement shall be the sole liability of User, including but not limited to any penalties, fines or other disciplinary action instituted or taken by the local, state or federal authorities with jurisdiction over such required license or certification.
(g) User shall not broker out any shipments from the Service to any another trucker or third party.
(h) User shall maintain documented driver validation procedures, recent driver logs and visit records, and proof of identification checks. User shall be responsible for maintaining personal and employment records on all User Personnel accessing or utilizing the Service, which may be requested at any time by AggDirect. User shall be liable for any acts, omissions, misrepresentation, fraud or negligence of User Personnel or in connection with User Personnel’s personal and employment records, including AggDirect’s reliance on the same.
(i) User shall ensure that User Personnel conduct documented physical inspections upon receipt and release of any and all Materials transported utilizing the Service, including noting any discrepancies before signing-off on such Materials.
(j) User represents and warrants that User has mandatory written safety procedures or safety rules for all truckers that are implemented and required in connection with any Shipment of Materials utilizing the Service and any truckers transporting Materials via the Service have signed a certification binding them to compliance with such safety procedures or safety rules.
(j) User and User Personnel shall be responsible for immediately contacting or reporting to AggDirect any and all issues, errors or technical difficulties experienced during the use of or in connection with the Service.
2.7. Contractor Instructions.In the event the Contractor gives specific instructions regarding the Shipment, including but not limited to the proper loading, handling and shipping of Materials, such terms shall govern and Tucker, as User, shall be obligated to comply therewith. If Trucker is unable to comply, or reasonably believes that Trucker or its personnel cannot comply, with the Contractor’s specific instructions, Truck shall immediately decline or cancel the job and notify AggDirect. Trucker shall be solely liable for failing to comply with Contractor’s specific instructions or failing to timely decline or cancel the job, and shall indemnify, defend and hold harmless AggDirect and AggDirect’s owners, directors, officers, employees, advisors, agents and representatives for any claims, suits, losses, damages, proceedings or other actions in connection with Trucker or Trucker’s personnel’s failure to comply with the Contractor’s specific instructions.
2.8. Payment and Remedies.Trucker, as User, hereby agrees that:
(a) User shall look solely to AggDirect for any payment for Shipping and other charges owing under this Agreement, and agrees that its sole recourse in the event of nonpayment shall be against AggDirect, and not under any circumstances against AggDirect’s owners, directors, officers, employees, agents or representatives or Contractor, consignee or any of their customers. User waives any and all claims it may have against AggDirect’s personnel agents, representatives and customers for payment of charges for services User renders hereunder. The aforementioned obligation and waiver shall survive the termination of this Agreement.
(b) User shall not claim at any time and under any circumstance, and hereby waives any right to claim, any lien whatsoever in any Shipment. User hereby understands and agrees that this is a waiver of its rights, and such waiver and relinquishment is a material condition of this Agreement.
2.9. Non-Solicit.User hereby agrees not to solicit, accept and/or book Shipments with any Contractor, Origin Location, consignee, or other Trucker, nor pursue or contract any business User first became aware of due to or undertook at any time with AggDirect, for eighteen (18) months after the termination of User’s account with AggDirect. AggDirect reserves the right to terminate User’s Account or this Agreement in its sole discretion for a breach or suspected breach of this Section.
2.10. Acceptance of Liability.Trucker, as User, hereby represents, warrants and covenants that:
(a) User is solely responsible for any and all liability which results or is alleged as a result of the services Trucker, as User, provides under this Agreement or Trucker’s access to or use of the Service, including, but not limited to, any acts, omissions, negligence, property damage, Materials loss, damages or delay, personal injury and death (including, but not limited to, liabilities related to User’s own property and employees). User’s liability in all cases shall be as a motor carrier. User’s liability is for the full amount of any such acts, omissions, negligence, loss, damage, injury, death, cost or other liabilities, irrespective of User’s insurance limits. In no event shall AggDirect be liable to any party for any of the aforementioned instances, actions, outcomes or matters.
(b) Trucker, as User, agrees to defend, indemnify, hold harmless and make whole AggDirect, Contractors and consignees and their respective owners, directors, officers, employees, advisors, agents or representative (“Indemnified Parties”) with respect to any and all claims, actions, proceedings, demands, losses, judgments, damages, expenses or liability (including costs and attorney’s fees), at any time, occasioned or made by any party due to or arising out of User’s or User Personnel’s: (i) use of the Service; (ii) User Content; (iii) interaction with any other User; (iv) violation of any of the terms of this Agreement; (v) salary, wage, overtime, benefits, local, state and federal payroll and other withholding taxes, unemployment insurance, pension, workers’ compensation, social security and related protections, and any other costs or expenses; (vi) violation of any applicable local, state and federal laws or regulations; or (vii) performance of services pursuant to this Agreement. This indemnification applies regardless of any provisions in separate contracts between AggDirect and third parties. User also hereby waives any claims or demands by User or User’s Personnel against AggDirect related to any costs, losses, expenses or liability arising from the above-listed actions by User or User’s owners, directors, officers, employees, advisors, agents or representative.
(c) Without limiting any of the foregoing provisions, User specifically agrees to defend, indemnify, hold harmless and/or make whole AggDirect, Contractors and consignees (and their respective owners, directors, officers, employees, advisors, agents and representatives), including costs and attorney’s fees, with respect to any and all claims, actions, proceedings, demands, losses, judgments, damages, expenses or such other liability whatsoever, suffered or made by any party or incurred by User due to or arising out of User, User Personnel or any of its other agents or representatives’:
i. Failure to use best efforts to pick up accepted Shipments at the designated point of origin within as soon as is practicable, or to use best efforts to proceed to the point of destination specified or to perform timely, efficient and reliable pick-up and delivery of any assigned and accepted Shipments;
ii. Failure to obtain from the Contractor a Bill of Lading (containing, at minimum, the names and addresses the Contractor and its authorized representative (and if required, the name and address of Trucker), the origin and destination addresses of the Shipment, the requested pickup and delivery dates and times, description of the Materials being shipped (including, type, weight and special conditions), any special shipping instructions or freight protection requirements and any other relevant terms and conditions), or User or its representatives or agents’ failure to confirm that the Materials match the description and quantities of the Materials in the Bill of Lading, is in good condition at the time of pick-up and any special shipping instructions are complied with, as stated therein. Users acceptance of any shipment, or its receiving of a signature on the Bill of Lading, shall be conclusive that the number of pieces shown on the Bill of Lading is correct and that lading is in apparent good condition and conforms to the specifications therein. Additionally, Trucker is required to upload a picture of the Bill of Lading which shall include a signature from an authorized individual of the recipient at the delivering location. All original Bills of Lading must be delivered to AggDirect’s office before any payment will be issued. Failure to comply with any of the foregoing may, in the sole discretion of AggDirect, result in User or User’s Personnel or other agents being denied full payment or subject to penalties assessed, as provided herein or in any separate agreement between AggDirect and User or User’s Personnel;
iii. Improper or unsafe loading or unloading of any Shipment, or, where User is not required to load or unload, failure to determine, to the extent User is able to ascertain through reasonable inspection or observation, that each Shipment was properly loaded or unloaded;
iv. Shipment of any loads in violation of applicable weight, axle, or other applicable local, state and federal laws and regulations, or Contractor’s specific instructions;
v. Suspension of service at any time after loaded dispatch or pickup, or delay of service or stop over for any reason that would leave User’s equipment and the Materials unsecure or unattended without adequate security as a reasonablely prudent Trucker would or as is otherwise required under User’s insurance policies or Contractor’s instructions;
vi. Acceptance of any Shipments for which User cannot comply with the Contractor or Shipment’s requirements, special conditions or special instructions (e.g., applicable temperature requirements), and any damage as a result of such failure to comply with such requirements, special conditions or special instructions;
vii. Use of equipment that has been used for the transportation of any waste of any kind, garbage, hazardous materials or any other commodity which may result in the contamination or spoilage of other Shipments (including, failure to properly clean User’s vehicle prior to loading a new Shipment, which results in contamination, spoilage or other distortion of the new Shipment);
viii. Failure to inspect and/or investigate if a Shipment contains hazardous material, acceptance of hazardous material, and/or violation of any applicable local, state and federal laws and regulations related to the handling or transport of hazardous material;
ix. Disengagement or detachment of User’s power unit from the trailer, container/chassis, flatbed or other equipment at any time, unless emergency or exceptional circumstances require it;
x. Failure to abide by the requirements of this Agreement or to perform the services under this Agreement in a professional, good and workmanlike manner in accordance with standards of the trade;
xi. Failure to promptly upload to the Service the Proof of Delivery and send the original to AggDirect via postal mail or the dropbox located at AggDirect’s mailing address;
xii. Performance of the services under this Agreement with equipment other than that which is under User’s own direct authority or control, or co-brokering, trip leasing or otherwise subcontracting the transportation or handling of any Shipment tendered hereunder to any other motor carrier or any other substitute mode of transportation, and any acts, omissions, negligence, misconduct or liability of any subcontractors or other third party as a result thereof;
xii. Failure to utilize equipment that is in good and safe operating condition, clean, insect and rodent free, odor free, mold free, sealed from water and/or moisture damage, properly maintained, hazard-free and in compliance with all local, state and federal laws, regulations and standards for such vehicle; and
xiv. To the extent you handle intermodal Shipments, failure to execute and comply with a current Uniform Intermodal Interchange Agreement (“UIIA”).
(d) AggDirect reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User or User’s Personnel is required to indemnify AggDirect, and User hereby agrees to cooperate with our defense of these claims. User hereby agrees not to agree to any terms or settle any matter without the prior written consent of AggDirect. AggDirect shall immediately notify User of any such claim, action or proceeding upon becoming aware of it.
3. CONTRACTOR TERMS, REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties.Contractor, as a User, hereby represents, warrants and covenants that:
(a) User has the proper authority to access or utilize the Service as intended. User owns the Materials to be shipped or has the necessary legal rights, title or custody to authorize the shipment of such Materials using the Service, and in either case has obtained the necessary permissions from an authorized representative of User (or the legal owner of the Shipment) to have the Materials transported to the destination selected by User.
(b) User acknowledges and agrees that the transportation of any Materials or other goods involves certain risk and liability, including but not limited to damage, loss, contamination, destruction, diminution of value or theft, or personal injury and death, among other things. User solely assumes any and all risks and liability associated with accessing or utilizing the Service to arrange for the transportation of Materials through the Truckers that use the Service and agrees that AggDirect shall at all times have absolutely no liability whatsoever for any shipped Materials or other items, or any claims, demands, loss or damages related thereto, or any personal injury or death.
(c) User is solely responsible for obtaining its own insurance policy to cover any risks and liability associated with or that may arise in accessing or using the Service, including but not limited to any damage, loss, contamination, destruction, diminution of value and theft of any shipment of Materials or other property of User or a third party, among other things.
(d) User is solely responsible for any and all liability, which results or is alleged as a result of such shipped Materials or other property, including, but not limited to, property loss, damage, destruction, contamination, diminution in value or theft, or personal injury and death.
(e) If Contractor, as User, is in any manner handling, loading, bracing and securing goods or supervising the same, User understands that it is liable for any and all claims, loss, damage, destruction, contamination, diminution in value or theft, among other things, as a result of User doing so improperly, unsafely or in any way negligently. User acknowledges and understands that at all times AggDirect is in no way whatsoever responsible for the handling, loading, securing, lading, packaging or compliance with shipping instructions for User’s Shipments or transportation of Materials or other property by accessing or utilizing the Service.
(f) User understands that AggDirect is not at any time a motor carrier or acting as a motor carrier for any purposes whatsoever, and as such, is not liable or responsible to User, the recipient of Materials or any other third party for any Materials or other property shipped under this Agreement and any loss, damage, destruction, contamination, diminution in value or theft, or personal injury and death arising therefrom or in connection therewith.
(g) If User brokers Shipments through AggDirect under this Agreement, User represents and warrants that User, at all such times, is duly authorized as a property broker with the FMCSA and complies in all respects with MAP-21, as may be amended.
(h) User understands that tracking the locations of User’s Shipments through the Service does not guarantee that such shipments will be delivered to User at the time specified.
(i) User understands that the Service at all times relies on third party services, including, but not limited to, website and application hosting, GPS, records storage, and data management, upload and download, among other things to deliver the functionality and features of the Services, such as tracking shipments, generating reports, storing data, and communicating with third parties, among other things, and as such, AggDirect is not responsible for any acts, omissions, representations, negligence, misconduct, failures and disruptions resulting from or in connection with such third party service providers used by or integrated into the Service. User hereby acknowledges and understands that the Service shall from time to time experience outages, interruptions, failures, maintenance, acts of god and other down times that may prevent User from accessing or using the Service for an indefinite period of time.
3.2. Non-solicit. Contractor, as User, shall not, directly or indirectly, contact any Trucker without AggDirect to solicit, offer or book shipments with the Trucker for twenty four (24) months from the last date of a Shipment between User and the Trucker. AggDirect reserves the right to terminate User Account or this Agreement in its sole discretion for a breach or suspected breach of this Section 3.2.
3.3. Prohibited Items. Contractors, as Users, shall not use the Service to ship the below items:
(a) Contraband or items that are illegal, dangerous, hazardous, radioactive, harmful, unsafe, offensive or objectionable;
(b) Items which require refrigeration; or
(c) Items prohibited by DOT, FHWA, OSHEA and any other local, state and federal laws and regulations.
Contract shall be solely responsible and liable for any and all violations of this Section 3.3.
3.4. Contractor Indemnification.Contractor, as User, agrees to defend, indemnify, hold harmless and/or make whole AggDirect and the Indemnified Parties (as defined in Section 2.10(b)) with respect to any and all claims, actions, proceedings, demands, losses, judgments, damages, expenses or liability (including costs and attorney’s fees), at any time, occasioned or made by any party due to or arising out of User’s or User Personnel’s: (i) use of the Service; (ii) User Content; (iii) interaction with any other User; (iv) violation of any of the terms of this Agreement; (v) violation of any applicable local, state and federal laws or regulations; or (vi) arising from User’s shipment. AggDirect reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify us and User hereby agrees to cooperate with our defense of these claims. Contractor, as User, agrees not to settle any matter without the prior written consent of AggDirect. User will use reasonable efforts to notify AggDirect of any such claim, action or proceeding upon becoming aware of it. This indemnification with respect to AggDirect applies regardless of any provisions in separate contracts between AggDirect and third parties. User also hereby waives any claims or demands by User or User’s Personnel against AggDirect or any Indemnified Party related to any costs, losses, expenses or liability arising from the above-listed actions by User or User’s owners, directors, officers, employees, advisors, agents or representative.
3.5. Reliance.Contractor, as a User, hereby acknowledges and understands that AggDirect shall rely on the representations, warranties and promises made by User in this Section 3, and but for these representations, warranties and promises by User, AggDirect would have declined User access to and use of the Service.
4. AGGREGATE CLAIMS
4.1. Trucker Liability. Trucker agrees to assume full liability for the prompt, safe transportation of all shipments under this Agreement, and agrees to be responsible for all loss, damage, delay, destruction, theft or liability of whatever nature arising from the transportation services hereunder, or from Trucker’s failure to perform the services. Trucker is forbidden from entrusting materials to any third party, however, Trucker assumes full liability, pursuant to this Section 4.1, for all loss, damage, delay, destruction, theft or liability of whatever nature arising from the transportation services hereunder, or from Trucker’s failure to perform the services whether occurring while the shipment is in the custody or control of the Trucker or \in the custody or control of any other party. Trucker’s liability to Broker, Contractor and/or any involved consignor or consignee, shall be the invoice value of the goods transported, without limitation.
Bills of Lading or receipts issued by Trucker, or signatures thereon, shall not constitute AggDirect’s written acceptance of Trucker’s liability limitation or other changes in the terms and conditions. Similarly, Trucker’s liability shall not be limited in any way by limitations or exclusions of coverage in its insurance policies. In the event of a conflict with the terms on Bills of Lading and this Agreement, including specifically any terms related to limitations of liability of Trucker, the terms of this Agreement shall govern. Trucker and AggDirect agree that pursuant to 49 U.S.C. §14101(b) the Trucker expressly waives all rights and remedies under Title 49 of the U.S. Code that conflict with these Terms of Service.
4.2. AggDirect Limitation of Liability.Unless a separate written contract with a User provides otherwise, AggDirect’s liability to its Users, any involved consignor or consignee, and any customer of such consignor or consignee, shall be no more than $30.00 per ton for any loss, damage, or injury to property resulting from AggDirect’s negligent performance of or failure to perform the broker services provided herein. AggDirect’s maximum liability per shipment shall be $1,000 per shipment.
4.3. Claim Submissions and Settlement.In the event of loss or damage, consignor or consignee shall endeavor to submit a claim to AggDirect within within thirty (30) days of the incident, and in no event later than ninety (90) days of the incident. AggDirect shall make every attempt to facilitate the resolution of the claim with the Trucker. AggDirect hereby does not assume terms and conditions set forth in Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement. In addition, unless agreed in a separate written contract, Contractor is not entitled to offset the amount of any claims, which remain unpaid or unresolved against amounts owed by Contractor to AggDirect.
Trucker shall settle claims within sixty (60) days of AggDirect’s receipt of all necessary claims documentation. Trucker hereby assumes all other terms and conditions set forth in Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement. In addition, AggDirect is entitled to offset the amount of any claims, which remain unpaid or unresolved after such 60-day period against amounts owing from AggDirect to Trucker hereunder. Trucker will be notified in writing prior to taking any action to offset. Trucker shall not dispose of damaged or rejected product without the prior written consent of AggDirect.
5. PAYMENT TERMS
5.1. Contractor Payment and Charges.
(a) For each Shipment, Contractor is obligated to pay AggDirect the fees listed to Contractor when the applicable Shipment was accepted for posting on the Service (“Shipment Fee”).
(b) Contractor is also obligated to pay:
5.1(b)1. Any applicable Accessorial Rates, including, but not limited to, potential wait charges in the event the Trucker waits at the pick-up or delivery location for more than 15 minutes after the agreed-upon time or delays due to Contractor.
5.1(b)4. Any other additional charges mutually agreed upon in writing by the Contractor and AggDirect.
(c) If you are a Contractor and you have provided a valid credit card, YOU HEREBY AUTHORIZE AGGDIRECT TO BILL USER’S CREDIT CARD FOR THE SHIPMENT FEE IMMEDIATELY AFTER COMPLETION OF THE SHIPMENT AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED.
(d) If you are a Contractor and you have provided AggDirect with User’s bank account information instead of a credit card, YOU HEREBY AUTHORIZE AGGDIRECT TO PROCESS A CHECK FROM USER’S BANK ACCOUNT FOR THE SHIPMENT FEE IMMEDIATELY AFTER COMPLETION OF THE SHIPMENT AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. To do this, User’s check is converted into an electronic check and presented immediately via the Automated Clearing House (“ACH”) system. In the event a check is subsequently returned for non-sufficient funds, you agree that we may add a returned check fee of $25.00 to the amount of the returned check and take any action available to us at law or in equity to collect such full amount. YOU AGREE TO PAY THE RETURNED CHECK FEE, THE INITIAL AMOUNT AND ANY COLLECTION CHARGES INCURRED BY US.
(e) If AggDirect extends credit to Contractor and allows for weekly billing, [need language for invoicing terms. Net 15 days after invoice.
(e) If User wishes to dispute a charge by mail or telephone please contact AggDirect at info@AggDirect.com. In the event that AggDirect charges any convenience fee for making a payment via a credit card or electronic check, these fees will be stated at the time of payment before User finalizes its charge. In the event of an unauthorized charge using a credit card or electronic check, please consult User’s bank’s rules regarding refunds and reversals.
(f) AggDirect complies with all legal requirements of User’s state’s applicable laws regarding providing refunds for unauthorized charges. When User makes a charge, AggDirect shall display a completed charge screen. This is User’s electronic receipt. User should print or save this electronic receipt for its records. USER REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), CHECKS, OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to our third party payment processor or us must be accurate, current and complete. User agrees to immediately notify AggDirect of any change in its billing address or the credit card or bank account used for payment hereunder.
5.2. Trucker Remittance.
(a) For each Shipment, AggDirect will pay Trucker the fees listed to Trucker when Trucker accepted the Shipment (“Trucker Fee”).
(b) Trucker shall not be entitled to any additional charges other than the Trucker Fee, except in the case of any additional charges, including but not limited to applicable Accessorial Rates, agreed upon in writing by the Trucker and AggDirect prior to the Trucker providing the services giving rise to such charges and prior to the inclusion of any such charges on AggDirect invoices. Trucker shall not be entitled to payment for any additional or accessorial charges not supported by back-up documentation.
(c) Trucker agrees that it is entitled to the Trucker Fee only after completion of the Shipment, which shall be payable to Trucker fifteen (15) days after AggDirect’s receipt of the Proof of Delivery in accordance with this Agreement. In the case of container shipments, the Trucker Fee shall be payable to Trucker fifteen (15) days after the job has been closed, meaning that the Trucker has submitted Proof of Delivery and an invoice. AggDirect will remit the Trucker Fees to Trucker on a weekly basis. Notwithstanding the foregoing, if the authorized recipient indicates on the Proof of Delivery or otherwise that the Shipment has shortages, or has been damaged, lost, delayed, not completed or otherwise files a claim regarding the Shipment and Contractor notifies AggDirect of this within a reasonable time after the Shipment (but in no case longer than two (2) months after completion of the Shipment), AggDirect shall have the right to withhold or offset payment of any Trucker Fee due to the Trucker until such problem with the Shipment or claim has been settled. Likewise, if the Trucker has applied accessorial or other additional charges without complying with the provisions of Section 5.2(b) of this Agreement, AggDirect shall have the right to withhold payment of such charges or offset such charges against future invoices.TRUCKER SHALL NOT WITHHOLD ANY SHIPMENTS AS A MEANS OF OBTAINING PAYMENT FOR PAST OR CURRENT CHARGES TO AGGDIRECT, AND TRUCKER WAIVES ANY LIENS ON SHIPMENTS TRANSPORTED THROUGH THE SERVICE. THE ONLY RIGHTS THAT TRUCKER HAS TO RECEIVE ANY AMOUNTS FROM AGGDIRECT ARE SET FORTH IN THIS SECTION 5.
5.3. General Payment Terms.
(a) Fees are inclusive of all fuel costs and charges. AggDirect may change pricing for the Service (from time to time in its sole discretion) by updating the Site and Mobile App and without any additional notice to you.
(b) User agrees to use the Service to pay for any Shipments booked through the Service and not to circumvent payments for scheduled or completed Shipments in any way. All payment will be in US dollars. User agrees that it is responsible for the collection and/or payment of all Taxes, which it may be liable for in any jurisdiction arising from User’s use of the Service. AggDirect is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other Federal, local. Or international taxes, which may be levied in respect of a transaction contemplated by this Agreement. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event that AggDirect is unable to bill Contractor due to insufficient funds, Contractor shall be liable for all costs and expenses incurred by AggDirect in connection with collection of the Contractor Fee, including costs and expenses of a third party collection agency. Shipment Fees are non-refundable.
6.1. Accounts.In order to use certain features of the Service, User must register for an account with AggDirect (“Account”) and provide certain information as prompted by the registration form. Contractor, as User, may be required to provide a valid credit card and billing address or ACH information. Truckers must provide valid license information. User represents and warrants that: (a) all required registration information you submit is truthful and accurate; and (b) User will maintain the accuracy of such information. User may delete its Account at any time, for any reason, by following the instructions on the Service. User is responsible for maintaining the confidentiality of its Account login credentials and is fully responsible for all activities that occur under its Account. Each Account may only be used to access the Service during one (1) concurrent login session. User agrees to immediately notify AggDirect of any unauthorized use, or suspected unauthorized use of User’s Account or any other breach of security. AggDirect cannot and will not be liable for any loss or damage arising from User’s failure to comply with the above requirements.
6.2. Site.Subject to the terms of this Agreement, AggDirect grants User a non-transferable, nonexclusive, license to use the Service for its internal business use during the term of this Agreement.
6.3. Mobile App.Subject to the terms of this Agreement, AggDirect grants User a nontransferable, non-exclusive, license to install and use the Mobile App, in executable object code format only, solely on User’s own handheld mobile device and for its internal business use during the term of this Agreement. User hereby agrees to use the Mobile App for the Service and GPS services only and shall not tamper with the Mobile App or website. Use of the Mobile App is for authorized use per this Agreement. All unauthorized use is forbidden and shall cause a default of this Agreement.
6.4. Certain Restrictions.The rights granted to User in this Agreement are subject to the following restrictions: (a) User shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (b) User shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) User shall not access the Service in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof.
6.5. Limited Support.Users may contact AggDirect’s technical support center for any support related issues arising from the use of the Service by following the instructions on the Service.
6.6. App Stores.User acknowledges and agrees that the availability of the Mobile App is dependent on the third party from which User received the Mobile App (“App Store”), e.g., the Apple App Store or Google Play. User acknowledges that this Agreement is between User and AggDirect and not with the App Store. Each App Store may have its own terms and conditions to which User must agree before downloading the Mobile App from it. User agrees to comply with, and User’s license to use the Mobile App is conditioned upon its compliance with, all applicable terms and conditions of the applicable App Store.
7.1. Ownership.Excluding User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service are owned by AggDirect or AggDirect’s licensors. The provision of the Service does not transfer to User or any third party any rights, title or interest in or to such intellectual property rights. AggDirect and its suppliers reserve all rights not granted in this Agreement.
7.2. Modification.AggDirect reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. User hereby agrees that AggDirect will not be liable to any User, its agents or employees or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
7.3. Feedback.If User provides AggDirect any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Service (“Feedback”), User hereby assigns to AggDirect all rights in the Feedback and agrees that AggDirect shall have the right to use such Feedback and related information in any manner it deems appropriate. Without limiting the foregoing, this limited assignment of rights applies to any testimonials User provides, and User hereby also grants AggDirect the right to use Users name in connection with sharing such testimonials with the public. AggDirect will treat any Feedback User provides to AggDirect as nonconfidential and non-proprietary. User agrees that it will not submit to AggDirect any information or ideas that it considers to be confidential or proprietary. If User agrees to participate in any case studies, it agrees that information it provides in connection with the case study is deemed Feedback and that AggDirect may utilize Users name in connection with such Feedback.
8. USER CONTENT
8.1. User Content.“User Content” means any and all information, data, and other content that a User submits to, or uses with, the Service. User Content includes the information provided in a Shipment request or acceptance. User is solely responsible for its User Content. User assumes all risks associated with use of User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of User Content that makes User or any third party personally identifiable. User hereby represents and warrants that User Content does not violate the Acceptable Use Policy (defined below). For the avoidance of doubt, User Content may include third party content User submits. User agrees not to submit third party content unless it has the consent of the applicable third party owner of such content. User may not state or imply that User Content is not in any way provided, sponsored or endorsed by AggDirect. Because User alone is responsible for User Content (and not AggDirect), User may be exposed to liability if, for example, User Content violates the Acceptable Use Policy. Because we do not control User Content, User hereby acknowledges and agrees that AggDirect is not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content.
8.3. Creation of Anonymous Data.AggDirect may create anonymous data records (“Anonymous Data”) from User Content by using commercially reasonable efforts to exclude any and all information (such as User name) that makes the data identifiable to User. AggDirect may use and disclose Anonymous Data for any purpose, including improving the Service.
9. ACCEPTABLE USE POLICY
The following sets forth AggDirect’s “Acceptable Use Policy”:
9.1. User agrees not to use the Service to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
9.2. In addition, User agrees not to use the Service to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Service; or (g) introduce software or automated Agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service.
AggDirect reserves the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against User, its agents, emloyees and any applicable third parties in our sole discretion (including removing or modifying User Content, terminating User’s Account in accordance with Section 10, and/or reporting User to law enforcement authorities) if User violates the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for AggDirect or any other person.
10. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while User utilizes the Service. AggDirect may at any time terminate this Agreement with User in its sole discretion if (a) User has breached any provision of this Agreement, the applicable SOP or Work Order (or have acted in a manner that clearly shows User does not intend to, or is unable to, comply with this Agreement); (b) AggDirect is required to do so by law (for example, where the provision of the Service to User is, or becomes, unlawful); or (c) AggDirect has elected to discontinue the Service as described in Section 7.2. Upon termination of this Agreement, User’s Account and right to access and use the Service will terminate immediately. AggDirect will not have any liability whatsoever to User for any termination of the Service, including for termination of User’s Account or deletion of its User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 6.4, 7-15.
11. DISCLAIMERS AND RELEASE
THE SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET USER”S REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
AGGDIRECT OFFERS A PLATFORM TO CONNECT CONTRACTORS AND TRUCKERS, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SHIPPING SERVICES OR ACT IN ANY WAY AS A TRUCKER, COURIER, OR SHIPPING PROVIDER. IT IS UP TO THE THIRD PARTY TRUCKER TO PROVIDE SHIPPING SERVICES, WHICH MAY BE SCHEDULED THROUGH THE USE OF THE SERVICE. AGGDIRECT HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO CONTRACTORS BY SUCH THIRD PARTY TRUCKERS. AGGDIRECT SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF TRUCKER OR CONTRACTOR FOR ANY REASON. TRUCKERS SHALL NOT BE DEEDED TO BE A SUBCONTRACTOR OR EMPLOYEE OF AGGDIRECT FOR ANY REASON. ANY DISPUTE CONTRACTORS HAVE WITH ANY TRUCKER OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN THE CONTRACTOR ANY SUCH THIRD PARTY.
TRUCKERS AGREE TO ALWAYS DRIVE VIGILANTLY ACCORDING TO ROAD CONDITIONS AND IN ACCORDANCE WITH TRAFFIC LAWS. TRUCKER HEREBY ACKNOWLEDGES THAT IT IS TRUCKER’S RESPONSIBILITY TO COMPLY WITH ALL APPLICABLE LAWS, INCLUDING TRAFFIC LAWS, AND HEREBY AGREES THAT ANY TICKET OR OTHER LEGAL DOCUMENT THAT TRUCKER MIGHT GET DUE TO A VIOLATION OF LAW (TRAFFIC OR OTHERWISE) IS THE SOLE RESPONSIBILITY OF THE TRUCKER. FURTHER, TRUCKER HEREBY AGREES THAT TRUCKER, DESPITE ANY DIRECTION FROM GPS OR OTHERWISE, IS ULTIMATELY RESPONSIBLE FOR THE SAFE AND SATISFACTORY DELIVERY OF THE SHIPMENT AND THE ROUTE USED TO GET THE SHIPMENT TO THE RECIPIENT.
DRIVING WHILE USING PHONES IS DANGEROUS AND AGAINST THE LAW. DO NOT USE THE MOBILE APP WHILE DRIVING. IF USER UTILIZES THE MOBILE APP WHILE DRIVING, IT DOES SO AT ITS OWN RISK.
AGGDIRECT MAKES NO WARRANTY REGARDING THE SUITABILITY, LEGALITY, REGULATORY COMPLIANCE, QUALITY OR ABILITY OF ANY TRUCKERS, CONTRACTORS, SHIPPED ITEMS AND SHIPPING SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE. BY USING THE SERVICE, USER OR ITS SHIPMENTS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE. USER UTILIZES THE SERVICE AT ITS OWN RISK. USERS INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN USER AND USER OR THIRD PARTY.USER HEREBY AGREES THAT AGGDIRECT WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN USER AND ANY OTHER USER OR THIRD PARTY, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED.
USER HEREBY WAIVES AND RELEASES AGGDIRECT (AND OUR SUPPLIERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), ARISING FROM USERS UTILIZATION OF THE SERVICE, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES.
12. LIMITATION ON LIABILITY
IN NO EVENT SHALL AGGDIRECT (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY PERSONAL INJURY OR LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR USER”S UTILIZATION THEREOF, INCLUDING WITHOUT LIMITATION, USING THE SERVICE IN VIOLATION OF TRAFFIC OR SAFETY LAWS, OR INABILITY TO USE THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,EXCEPT AS PROVIDED IN SECTION 4.2, AGGDIRECT’S (AND OUR SUPPLIERS’) LIABILITY TO USER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID AGGDIRECT IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
THE INFORMATION PROVIDED BY THE SERVICE IS NOT INTENDED TO REPLACE INFORMATION PRESENTED ON THE ROAD. IN THE EVENT THAT INFORMATION PRESENTED ON THE ROAD, INCLUDING WITHOUT LIMITATION, TRAFFIC LIGHTS AND TRAFFIC SIGNS, INSTRUCTS DIFFERENTLY THAN THE SERVICE, YOU MUST NOT RELY ON THE SERVICE.
13. THIRD PARTY SITES & ADS
The Service might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of AggDirect and AggDirect is not responsible for any Third Party Sites & Ads. AggDirect provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. User shall use all Third Party Sites & Ads at its own risk. When User links to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. User should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
14. COPYRIGHT POLICY
AggDirect respects the intellectual property of others and asks that Users of our Service do the same. In connection with the Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users who are repeat infringers of intellectual property rights, including copyrights. If any User believes that one of our otherUsers is, through the use of the Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. – 512(c)) must be provided to our designated Copyright Agent: (1) User’s (User providing notification) physical or electronic signature; (2) identification of the copyrighted work(s) that User claims to have been infringed; (3) identification of the material on our services that User claims is infringing and that User requests us to remove; (4) sufficient information to permit us to locate such material; (5) User’s address, telephone number, and e-mail address; (6) a statement that notifying User has a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (7) a statement that the information in the notification is accurate, and under penalty of perjury, that notifying User is either the owner of the copyright that has allegedly been infringed or that it is authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C.-512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
15.1. These Terms of Service are periodically reviewed, modified and enhanced as necessary. Please revisit the Terms of Service periodically to stay aware of any changes thereto. If we modify the Terms of Service, we will make the relevant updates available through the Service. AggDirect will endeavor to notify User of these changes by email, but will not be liable for any failure to do so. Amendments will be effective upon AggDirect’s posting of such updated terms. Continued use of the Service following such posting shall indicate User’s acknowledgement of such changes and agreement to be bound by the terms and conditions, as amended. If User does not understand any of the terms herein, or have questions or other issues related to its use of AggDirect, you may inquire regarding the same via email at info@AggDirect.com.
15.2. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS USER’S RIGHTS
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between User and AggDirect and our employees, agents, successors, or assigns, regarding or relating to these the Service or this Agreement, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
User is thus GIVING UP USER’S RIGHT TO GO TO COURT to assert or defend User’s rights EXCEPT for matters that may be taken to small claims court. User’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. User is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
User and AggDirect must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS- WIDE RELIEF, (3) in the event that User is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of User’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration;(5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(c) Notwithstanding the foregoing, either User or AggDirect may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Prince George County, Maryland. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Prince George County, Maryland in order to maintain the status quo pending arbitration, and hereby agree to submit to exclusive personal jurisdiction of the courts located within Prince George County, Maryland for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(d) With the exception of subparts (1) and (2) in the paragraph 14.2(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 14.2(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither User nor AggDirect shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Prince George’s County,Maryland.
(e) Notwithstanding any provision in this Agreement to the contrary, if AggDirect seeks to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which User provided AggDirect with written notice prior to the date of termination.
(f) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website athttp://www.jamsadr.com.
(g) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and AggDirect and our employees, agents, successors, or assigns, regarding or relating to the Service or this Agreement, shall exclusively be governed by the internal laws of the State of Maryland, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
15.3. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party.
15.4. Entire Agreement.This Agreement, including but not limited to any applicable Accessorial Rates, SOP, and/or Work Order incorporated by reference herein, constitutes the entire agreement between User and AggDirect regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
15.5. Independent Contractor.User’s relationship to AggDirect is that of an independent contractor, and neither party is an agent, employee or partner of the other. User assumes complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation services rendered hereunder. User is not, nor will it be deemed to be, an agent, legal representative, joint venture, franchisor, franchisee, or legal partner of AggDirect for any purpose. User will not be entitled to enter into any contracts, make any representations or warranties in the name of, or accept any obligations whatsoever on behalf of AggDirect.
15.6. Assignment.This Agreement, and User rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by User without AggDirect’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
15.7. Press.User hereby grants AggDirect permission to identify User as a customer of AggDirect or user of our Services and to reproduce User’s name and logo on the Site and in any other marketing materials.
15.8. Conflict.If there is any conflict or inconsistency between the terms and conditions set forth in this Agreement and the terms set forth in any Bill of Lading, Proof of Delivery or any other shipping form, the terms and conditions of this Agreement shall control over such terms. If there is a conflict between the terms of this Terms of Service and a separate Broker or Contractor Agreement which serves as the primary agreement for purposes of defining the transportation services to be provided by Broker, the terms of such separate agreement shall govern, but all non-conflicting terms herein shall apply.
15.9. Restrictions.User may not: (i) remove any proprietary information (including copyrights or trademarks) from any portion of the website or Mobile App; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service, except as expressly permitted by AggDirect; (iii) cause or launch any programs or scripts for the purpose of indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (iv) attempt to gain unauthorized access to or impair any aspect of the Service..
15.10. Electronic Communications.The communications between User and AggDirect use electronic means, whether User utilizes the Service or send us emails, or whether AggDirect posts notices on the Service or communicates with User via email. For contractual purposes, User (a) consents to receive communications from AggDirect in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that AggDirect provides to User electronically to satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect User’s non-waivable rights.