This Platform Access Agreement (“PAA”) governs your use of Keep Truckin, Inc.’s (“KeepTruckin” or “KT”) Smart Load Board, including any websites, dashboards, APIs and mobile applications related thereto (the “SLB”). By accessing, viewing, or using any content or materials related to the SLB, you agree that you (“You”, “Freight Partner”, or “Your”) have read and understand the terms of this PAA and as they may change from time to time, and that you agree to the terms and intend to be legally bound by them. You and/or Freight Partner refers to the individual using the SLB and if you use the SLB on behalf of a corporation, LLC, partnership, or other business entity, then You and/or Freight Partner shall include that business entity and any individuals associated therewith using the SLB. Once you accept this PAA, you hereby acknowledge and agree that at any time, and in its sole discretion, KeepTruckin may modify this PAA by posting the modified PAA on the SLB, accessible via the link set forth at https://keeptruckin.com/load-board-tos and or any successor website containing this PAA or other similar terms and conditions. If you do not agree to the terms of this PAA, you are not permitted to use the SLB.
Freight Partner represents and warrants that Freight Partner is either a shipper of its own cargo, a federally registered freight broker as defined by 49 USC §13102(2), or a federally registered freight forwarder as defined by 49 USC §13102(8), and if a broker of freight forwarder, has valid and current authority granted by the Federal Motor Carrier Safety Administration of the U.S. Department of Transportation and will cease use of the SLB immediately if such authority is revoked or suspended.
The SLB technology platform, including access to KT’s mobile application, website and other associated services are intended to provide, among other things, Freight Partner the ability to (i) receive contacts from available motor carriers (“Carrier(s)”) to perform motor carriage services for Freight Partner or its shipper customers and (ii) post loads, including relevant details regarding such loads, which Carriers may access and place bids on or book through the SLB. The SLB provides a means by which Freight Partners can make Carriers aware of available loads, and Carriers can make Freight Partners aware of their capacity, however, any arrangement of transportation is between the Freight Partner and the Carrier(s). KT is not a freight broker, is not providing the services of a freight broker, and does not hold itself out as selling, providing, or arranging for, transportation by motor carrier for compensation.
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Subject to the terms and conditions of the Agreement, KT hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license, during the term of this Agreement, to use the SLB. In connection with your use of the SLB, you may not: (a) copy, modify, distribute, sell, license, sublicense, assign, transmit, publish or republish, display, perform, edit, create derivative works from, transfer, lease, sell or license any part of the SLB to a third party; (b) reverse engineer, dissemble, decompile or work around any technical limitations of the SLB; (c) copy or retrieve data or other content provided by us to you, either manually or by use of automatic devices, for the purpose of creating or compiling, directly or indirectly, a collection, database or directory or creating products competitive to the SLB or the KeepTruckin Services; or (d) use meta tags or other hidden text utilizing our name or trademarks or use framing techniques to enclose any portion of the SLB or the Services. You may not make copies of any part of the SLB except as reasonably necessary for your own internal business purposes. Other than the express license above, KT reserves, retains, and owns all right, title, and interest (including intellectual property rights) in and to the SLB.
This Agreement is effective as of the Effective date and shall continue for a period of twelve (12) months from the date thereof (“Initial Term”). Thereafter, this Agreement shall automatically renew for successive twelve (12) month periods, unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In addition to any other rights set forth in its Terms of Service, KT may immediately: (i) revoke or suspend Freight Partner’s access to the SLB at any time and for any reason or no reason, or (ii) terminate this Agreement, if Freight Partner breaches the terms of the Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
The relationship between the parties is solely as independent business enterprises. Nothing in this Agreement creates, will create, or is intended to create, any employment partnership, joint venture, agency or sales representative relationship between KT and Freight Partner.
In addition to the terms set forth in Section 6.10 of KT’s Terms of Service, you agree to and acknowledge the following:
Any payment terms shall be set forth in a separate agreement in writing between you and KT. Notwithstanding the foregoing, KT may, at any time thereafter, propose a payment structure (subscription, transactional or other) to Freight Partner. It is the intent of the parties that they will use commercially reasonable efforts to reach agreement on mutually acceptable payment terms. In the event that such an agreement cannot be reached, then KT may terminate this Agreement.
To the extent any Carrier shares any data captured by its Electronic Logging Device or other geolocation and asset tracking technology (“Carrier Data”) via the SLB with Freight Partner, Freight Partner will only use Carrier Data for purposes of completing shipments for Freight Partner or its customers and for no other purpose except as expressly consented to by KT and the applicable Carrier.
Any data uploaded into the SLB by Freight Partner shall be considered Customer Data as described in the Terms of Service and shall be subject to the licenses and uses set forth therein.
WE PROVIDE THE SLB AND ANY ADDITIONAL PRODUCTS OR SERVICES “AS IS” AND “AS AVAILABLE,” WITHOUT GUARANTEE OR WARRANTY OF ANY KIND, AND YOUR ACCESS TO THE SLB IS NOT GUARANTEED TO RESULT IN ANY LOAD COVERAGE. WE DO NOT WARRANT THAT THE SLB WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR- FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS WILL BE CORRECTED, THAT OUR TECHNOLOGY IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS OR LOSSES RESULTING FROM SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT YOUR ACCESS TO THE SLB.
WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE CARRIERS WHO MAY OFFER TO HAUL OR ACTUALLY RECEIVE LOADS FROM YOU. WE DO NOT SCREEN OR EVALUATE THE CARRIERS. SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, SUCH AS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SAFETY, SECURITY, AND NON- INFRINGEMENT. WE EXCLUDE ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SLB AND YOUR INTERACTIONS WITH ANY CARRIER ARISING OUT OF YOUR USE OF THE SLB REMAINS WITH YOU. IF A DISPUTE ARISES BETWEEN YOU AND ANY CARRIER OR ANY OTHER THIRD PARTY, YOU RELEASE KT AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND DISTRIBUTORS FROM LOSSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
TO THE FULLEST EXTENT PERMITTED BY LAW, KT AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE FOR YOUR USE OR INABILITY TO USE THE SLB, AND ALL RELATED SERVICES AND/OR FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (B) LOSS OF USE, DATA, BUSINESS, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR (C) DAMAGES FOR PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER KT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL KT OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR DISTRIBUTORS BE LIABLE TO FREIGHT PARTNER WITH RESPECT TO THE SUBJECT MATTER HEREOF UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE FEES PAID TO KT BY FREIGHT PARTNER HEREUNDER DURING THE TWELVE MONTH PERIOD PRECEDING ANY CLAIM, AND IF NO FEES HAVE BEEN PAID TO KT THEN ONE HUNDRED U.S. DOLLARS (US $100).
Freight Partner will indemnify, defend, and hold harmless KT and its affiliates, officers, directors, employees, agents, licensors, and distributors from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of or relating to a third-party claim regarding (i) Freight Partner’s access to or use of the SLB and related services; (ii) Freight Partner’s breach of the Agreement (iii) Freight Partner’s interactions with another party, directly or indirectly, through the SLB, or (iv) negligent acts or omissions of Freight Partner.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of California. Any controversy or claim between the parties arising out of or relating to this Agreement or the breach thereof, shall be settled through binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Exclusive venue for such arbitration shall be San Francisco, CA. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Notwithstanding anything in this Section, neither party is precluded from seeking injunctive or similar equitable relief in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, to protect its rights.
UNLESS YOU AND KEEPTRUCKIN AGREE OTHERWISE, YOU MAY ONLY RESOLVE DISPUTES WITH KEEPTRUCKIN ON AN INDIVIDUAL BASIS. CLASS ACTIONS, CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS AND CONSOLIDATIONS WITH OTHER CLAIMS ARE NOT ALLOWED. NEITHER YOU NOR KEEPTRUCKIN MAY CONSOLIDATE A CLAIM OR CLAIMS AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION, A CONSOLIDATED ACTION OR A REPRESENTATIVE ACTION.
You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without KT’s prior written consent. KT may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, upon notice.
Freight Partner grants KeepTruckin the right to use Freight Partner’s name, trademark, and logo on KeepTruckin’s website and in KeepTruckin’s marketing materials, including any press releases about Freight Partner’s participation in the SLB.
Any notice sent under this Agreement shall be sent to (i) for notice to Freight Partner: at the email address associated with its account or as posted through the SLB or the Services and (ii) for notice to KeepTruckin: by mail to: 55 Hawthorne Street 4th floor, San Francisco, CA 94105 and email to: email@example.com.
This Agreement represents the entire agreement and understanding of the parties with regard to its subject matter. No prior understandings or agreements of the parties, whether written or oral, nor any documents not specifically incorporated into this Agreement, nor any course of conduct of the parties before or after the Effective Date of this Agreement, shall have the effect of modifying the parties’ rights and obligations under this Agreement in any way.