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TIAT Terms Of Use Agreement
Last Update 1-1-2023
The following is Take It Away Tom! Terms of Use Agreement (collectively, “Agreement”), together with the Take It Away Tom! Privacy Policy, EEO No-Discrimination, TIAT Company Policy, as well as any other Terms that may apply, are incorporated by reference below, governs (a) the use by Shippers (collectively, “Shippers”), Carriers (collectively “Carriers”), Affiliate Brokers (collectively, “Brokers”), and Affiliate Marketers ((collectively, “Affiliates”)Shippers, Carriers, Brokers, and Affiliates are collectively, “User, Users, or Parties”) and the User’s Representatives (as defined below) of the electronic platforms offered by Take It Away Tom! ((collectively, “Company”)as defined below), including the Company’s websites and mobile applications (collectively, “Platform”), and (b) the relationship between the Company and each User on the Platform.
This Agreement describes the terms by which the Company offers to you, as a User, access to its website at www.takeitawaytom.com and the associated mobile software application platform owned and operated by the Company (collectively, “Platform”). The Company provides an online and mobile platform to connect Shippers, Brokers, and Carriers for the transportation of goods, whereby Users can submit a request for the transportation of freight/cargo/goods (collectively, “Shipment”). Carriers can accept such requests, and Brokers can help facilitate the needs of Shippers and Carriers, all parties can track such requests and shipments. The Service includes access to applications, content, and downloads offered by the Company, including the Site, Mobile App, and associated user content (collectively, “Services”). The Company does not assess the suitability, legality, regulatory compliance, quality, or ability of any User or shipped items scheduled through the use of the Platform. The Company makes no warranty regarding the same.
This Agreement sets forth the terms under which a User may utilize (a)The Company’s online (including website and/or mobile application based) User platforms or such other location as it may be located in the future (Collectively “Platform”) and (b) the Company’s Platforms (including Take It Away Tom! Shippers, Carrier, Brokers, and Affiliates platforms requested or provided outside of the Load board). The Platform is the Company’s Transportation Brokerage Platform and other Applications, products, services, and software offered by the Company related to logistics or freight transportation.
This Agreement applies to all (a) users of the Company’s Platforms in the United States, and/or Canada and (b) Users and their User’s Representatives performing services (as defined below) in the United States and/or Canada.
Take It Away Tom! Inc, is a Nevada based S-Corp, USDOT#: 3864027 / MC#: 1435490 / FF#: 55471 (“Take It Away Tom!” is a broker and freight forwarder), providing freight brokerage Platform for transportation services that involves arranging for the transportation of freight of third-party Shippers and Brokers by Carriers in accordance with this Agreement . Take It Away Tom! is not a motor carrier.
By signing up and registering with the Company by any User or User’s Representative accessing or using any part of the Platform on behalf of a User on or after the date first set forth above, User accepts this Agreement, and in doing so such User’s Representatives represents and warrants to the Company that he or she has the legal right, authority, and capacity to enter into this Agreement on behalf of such User. Neither you nor your representatives are permitted to access or use the Platforms or accept this Agreement if the User does not meet the requirements set forth below. Please read this Agreement carefully before using the Platform. Use of the Platform is contingent on the TIAT Terms of Use Agreement to all of the terms and conditions contained in this Agreement.
If you or the User you represent do not agree to any of the terms of this Agreement, you and your Users are prohibited from accessing or using the Platform until an authorized representative of the User you represent enters into this Agreement.
Please refer to the Take It Away Tom! Privacy Policy for more information about how we collect, use, and disclosed information about User, User’s Representatives, and other Users of the Platform.
This Agreement governs access to and use of the Platform, including our mobile application and our web portal, are located here (the “Take It Away Tom!”). This Agreement, as well as the Take It Away Tom! Privacy Policy, and all sections applicable in all platform user agreements that pertain to functioning as a User on the Platform, are incorporated herein by reference and form part of this Agreement.
The following TIAT Terms of Use Agreement is entered into by and between Take It Away Tom! and each Registered User(s/’s) utilizing the Platform (as defined below). This Agreement amends, restates and supersedes in its entirety any other agreements regarding the subject matter hereof, including (a) the terms and conditions of any tariffs, bills or other documents provided by other Users and, (b) any other written Agreements between Users and Take It Away Tom! Representatives.
THE COMPANY IS NOT A MOTOR CARRIER. NO INTERPRETATION OF WRITTEN OR ORAL REMARKS IN ANY AGREEMENT OR DOCUMENT SHALL BE CONSTRUED TO IMPLY THE COMPANY IS A MOTOR CARRIER, OR THAT TAKE IT AWAY TOM! IS SUBJECT TO THE REGULATORY OR LEGAL REQUIREMENTS OR LIABILITIES OF A MOTOR CARRIER. TAKE IT AWAY TOM! HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION OR MOTOR CARRIER SERVICES PROVIDED TO ANY SHIPPER OR ANY OTHER PARTY USING THE SERVICES.
Terms of Use Agreement Index
DEFINED TERMS
The Parties Agree to the following definitions to which define our Service, Platforms, and Relationships to Take It Away Tom!;
"Take It Away Tom!"
Take It Away Tom! is a federally licensed freight broker and freight forwarder as defined by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation. Take It Away Tom!’s sole obligation is to arrange transportation of cargo by a Carrier that is appropriate and authorized to operate by all applicable governmental agencies. As a freight broker, Take It Away Tom! does not take possession, custody or control of any cargo. Take It Away Tom! does not assume any liability, possessory rights or obligations, and assumes no financial responsibility whatsoever, for cargo, including loss, theft, damage or delayed delivery thereof.
Take It Away Tom! offers a software platform to connect Shippers, Brokers, and Carriers, but does not provide actual transportation services or act in any way as a Carrier or a transportation Broker. It is the Carrier’s obligation to provide transportation services, which may be scheduled through the use of the Platform. Take It Away Tom! has no responsibility for any shipping services provided to you as a User by any Broker, Shipper, Carrier, or Affiliate on the Platform.
“Shipper”
Shipper, are defined by 49 USC §13102(13), and warrant that you own, possess, or otherwise have rights to transport cargo you seek to ship by way of the Service/Platform.
"Transportation Broker/Broker"
Means a person, other than a motor carrier or as part of a motor carrier’s operations, who, for compensation, arranges, or offers to arrange, for-hire transportation of freight, cargo, or goods. A transportation broker is not an agent of a motor carrier, cannot represent itself as a motor carrier, cannot provide or offer to provide transportation service, and cannot be a party to the contract for transportation.
Broker is defined by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation. A Broker who accesses or uses the Platform is an independent contractor and remains solely responsible for screening, selecting, hiring, training, supervising, managing, assigning their employees. The Broker is solely responsible for its own actions, omissions, training, oversight, compliance with regulatory and safety requirements, and the management of all services, employees, contractors, agents, and servants of the Broker. The Broker maintains sole control over the methods and results by which it performs services on the Platform, and retains the sole duty to provide, maintain, manage and control personnel, and expertise required by law. The Company is not an agent of any Broker, and no Broker is an agent of the Company.
"Co-brokering"
Is when a broker works with another broker to service a specific need, with all parties aware of each other’s functions and responsibilities.
"dISPATCHER"
Means a Person who is in the employee of, or working under a contract with a Broker and/or Carrier, and whose duties include accepting Orders and/or Dispatching Orders; a person who dispatches a Vehicle for Hire; a telecommunicator who receives calls from individuals who need Freight Transportation Services.
"Motor Carrier" or “Carrier”
Carrier means a motor carrier as defined by 49 USC §13102(14) with authority issued by the federal and applicable state governments to haul cargo for hire. A Carrier who accesses or uses the Platform is an independent contractor and remains solely responsible for screening, selecting, hiring, training, supervising, managing, assigning, and dispatching its drivers; as well as for the inspection and maintenance of its motor vehicle equipment and accessories. A Carrier is solely responsible for its own actions, omissions, training, oversight, compliance with regulatory and safety requirements, and all management of Carrier’s equipment, services, drivers, employees, contractors, agents and servants. A Carrier maintains sole control over the methods and results by which it performs services on the Platform, and retains the sole duty to provide, maintain, manage and control the equipment, personnel, and expertise required to transport your cargo. The Company is not an agent of any Carrier, and no Carrier is an agent of the Company.
"Affiliate Marketing"
A marketing program in which companies compensate partners that link to, review, or direct sales to certain products.
"Affiliiate"
The term “affiliate” for the purposes of this agreement means any person that is registered in connection with the Affiliate Marketing Platform. A Affiliate who accesses or uses the Platform is an independent contractor and remains solely responsible for screening, selecting, hiring, training, supervising, managing, and assigning their representatives. Affiliates are solely responsible for their own actions, omissions, training, oversight, compliance with regulatory statutes, and all management of Affiliates equipment, services, employees, contractors, agents and servants. A Affiliate maintains sole control over the methods and results by which it performs services on and off the Platform, and retains the sole duty to provide, maintain, manage and control personnel, and expertise. The Company is not an agent of any Affiliate, and no Affiliate is an agent of the Company.
“User Content”
User Content means any and all information, data, textual, audio, and/or visual content, commentary and feedback related to the Service, ratings, reviews and other content that a User submits to, or uses with, the Platform. User Content includes the information provided in a Shipment request or Carrier acceptance content.
“User”
A User is any Entity or Person whom accesses or uses the Platform for services, and may be a Shipper, Broker, Carrier, or Affiliate.
“Independent Contractor”
This Agreement does not make you an agent, legal representative, joint venture, or partner of the Company for any purpose. You understand and agree that you will act as an independent contractor and are in no way authorized to make any contract, warranty or representation on behalf of the Company, or to create any obligation express or implied on behalf of the Company. It is expressly agreed and understood that you shall not be considered under this Agreement as having any employment status with the Company, or as being entitled to any plans, distributions, or benefits extended by the Company to its employees.
"bRAND nAME"
or “trade name” means a brand name or a trade name, whether registered or not, that is to say, a name or a mark, such as symbol, monogram, logo, label, signature, or invented word or writing which is used in relation to such specified services for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified services and some person using such name or mark with or without any indication of the identity of that person.
"Confidential Information"
“Confidential Information” includes: (a) the Platform (b) any personally identifiable data or information regarding any end user; (c) any and all information disclosed by Company to Users, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (d) any notes, extracts, analyses or materials prepared by User which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (e) the Terms of Use Agreement. “Confidential Information” does not include information received from Company that User can clearly establish by written evidence: (1) is or becomes known to User from a third party without an obligation to maintain its confidentiality; (2) is or becomes generally known to the public through no act or omission of User; or (3) is independently developed by User without the use of Confidential Information.
PROVISION OF PLATFORM
Access to Platform
The Company will establish a User Administrator Account that will enable User to access the Services and the Platform. User agrees to pay all applicable charges for the Services booked, tendered, or otherwise purchased on the Platform, and User agrees that it is responsible for all charges incurred by User and any individual authorized by User that uses the Service in association with your User Account.
License
Subject to the User’s compliance with this Agreement, during the term of this Agreement, the Company grants to User a limited, worldwide, revocable, non-sublicensable, non-exclusive, non-transferrable, non-assignable, license to access and use the Services solely in connection with the use of the Platform, subject to the conditions and limitations set forth in this Agreement.
Any rights not expressly granted herein are reserved by the Company and its Licensors.
Restrictions
User agrees to, and to cause all the User’s Representatives to, use the Platform as set forth in this Agreement. The Company reserves the right to suspend or terminate use of the Platform to User and/or any User’s Representatives for violations of this Agreement. User shall not, and shall not authorize others to: (a) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit any portion of the Platform except as expressly permitted by the Company; (c) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Platform of Services or any other Company technology, except to the extent allowed by applicable law; (d) link to, mirror or frame any portion of the Platform; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform; or (f) attempt to gain unauthorized access to or impair any aspect of the Platform.
ACCOUNT ADMINISTRATION
User Platform
User shall be provided with access to the Platform for Services. The Company’s primary contact with User shall be by way of User’s administrators or other responsible person who is identified to the Company from the User. The Company will inform the Administrator of Platform login credentials. The Platform will enable Users to do one or more of the following (as may be available in other Services): (a) build shipments and requesting receive price quotes from Users of the Platform, (b) tender and give quotes for shipments (c) view detailed shipment and shipment transportation information, which may include, without limitation, User name together with request time and date, information about the shipment, the name and other identifying information of the User and its Representatives performing the Services, location information of the User and/or User’s Representative performing Services, information about the equipment being used by the User to provide the Service, shipment pick-up and delivery time and date, pick-up and delivery address and related facility information, pick-up and delivery facility contact persons and their contact information (which may include phone numbers and email addresses), the Users company personnel contact persons and their contact information (which may include phone numbers and email addresses), trip route, distance and duration, and the price charged by all Parties, as well as prepare and review activity report Data. User agrees to use the Platform Data solely for legitimate business purposes. The Company reserves the right to add, remove and update features and functionality of the Platform at any time.
Administration
User may appoint User’s Representatives at its sole discretion. User agrees to (a) maintain all Platform login credentials in confidence, (b) only permit the Administrator and User’s Representatives to access the Platform, and (c) update all information of the Administrator and User’s Representatives as necessary to ensure that it is current, accurate, and complete. User shall limit access to Platform Data to only those User Representatives who have a legitimate business need to access such Platform Data. Users shall be responsible for all activity that occurs under their Platform login credentials.
Unauthorized Use
User shall notify the Company promptly of any misuse or unauthorized use of the Technology, which comes to the attention of the User, and shall notify its Clients upon the request of the Company, when the Company believes such Technology are being misused. User shall cooperate, at the Company’s reasonable expense, with the Company in any action, including any legal action, which the Company may feel is necessary in order to protect the Technology and Platform.
Relationship of all parties
The User and the Company relationship shall be deemed to be an independent user relationship within the Platform. User shall not hold itself out as an employee or agent of the Company. No debts or obligations shall be incurred by either party in the other party’s name, including execution of the collective Terms of Use Agreements. Affiliates and Brokers shall have the right to perform certain services for other Users, such as training, installation and non-contract support and bill its Clients directly for such services. Users specifically understand and agrees that User shall not be treated as an employee with respect to such services as are performed for any applicable tax purposes; and it is further agreed that this Agreement shall not bring the Company under the provisions of any local, state, provincial, federal, national, and international regulation wherein coverage thereunder is based upon the relationship of employer and employee.
USER CONTENT
You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate any provision of this Agreement. For the avoidance of doubt, User Content may include third party content you submit. You agree not to submit third party content unless you have the consent of the applicable third party owner of such content. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by the Company. You acknowledge and agree that the Company is not responsible for any loss or damage resulting from anyone’s use or reliance on User Content and the Company makes no guarantees regarding the accuracy, completeness, usefulness currency, suitability, or quality of any User Content, and assumes no responsibility for any User Content.
LICENSES
The User hereby grants, represents, and warrants that they have the right to grant, to the Company an irrevocable non-exclusive, transferable, fully-paid, royalty-free, sublicensable, worldwide license, to use, distribute, reproduce, display, perform, copy, modify, recreate, and create derivative of the Users works distributed, publicly displayed, publicly performed, and otherwise exploit in any manner as such User Content in all formats and distribution channels, now known or hereafter devised (including in connection with the Platform, the Services, the Company’s business, and on third-party sites and services), without further notice to or consent from You, and without the requirement of payment to You or any other person or entity. All rights in and to the User Content not expressly granted to the Company in this Agreement are reserved by Users.
Accounts
In order to use certain features of the Platform, you must register for an account with the Company and provide certain information as prompted, by the Sign-up and Log in form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may Cancel your Account at any time, for any reason, by contacting the Company or following the instructions on the Platform. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. The Company is not liable for any loss or damage arising from your failure to comply with the above requirements.
Anonymous Data
The Company may create anonymous data records from your User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to you. The Company may use and disclose Anonymous Data for any purpose, including improving the Platform, Services, and Technology.
Telephone Calls and Text Messages
Upon registration for an account, you will be asked to provide us with a telephone number at which we can reach you. That number is required to connect Shippers, Brokers Carriers, and their Representatives for the transportation of Shipments, Technical Support, and so that the Company can reach you with informational calls and SMS and/or MMS text messages related to Shipments and Services. The frequency of text messages that we send to you depends on your transactions with us and you consent to receive text messages sent through an automatic telephone dialing system. All calls to and from the Company may be monitored or recorded for quality and training purposes.
If you elect to receive promotional text messages in connection with your account, we may also send you promotional text messages and you consent to receive text messages sent through an automatic telephone dialing system.
All charges are billed by and payable to your wireless service provider. Please contact your wireless service provider for pricing plans and details. If you wish to opt out of such text messages, you may do so by following the “opt-out” instructions in the text message, or by editing your account settings. Message and data rates may apply. We will treat data collected through text messages in accordance with our Privacy Policy.
Site
The Company owns and retains ownership in the Site, the Platform, and the Services applications, and all intellectual property therein. Subject to the terms of this Agreement, the Company grants you a limited, non-transferable, non-exclusive, revocable license to use the Site for your internal business use during the term of this Agreement.
Mobile App
The Company owns and retains ownership in the Mobile App and all intellectual property therein. Subject to the terms of this Agreement, the Company grants you a limited, non-transferable, non-exclusive, revocable license to install and use the Mobile App, in executable object code format only, solely on your own handheld mobile device and for your internal business use during the term of this Agreement.
Restrictions
The rights granted to you in this Agreement are subject to the following restrictions:
- You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service;
- You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service;
- You shall not access the Service in order to build a similar or competitive service; and
- 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.
Limited Support
Users may contact the Company, Brokers, and Affiliates for technical support of the Platform and Services. For any support- related issues arising from the use of the Platform or the Service contact your Affiliate Broker. If issues continue please contact Corporate Customer Support at 866-777-6349.
Disclosure
The Company may share your User Content (a) with third party service providers; (b) if another company acquires the Company; and/or (c) to comply with relevant laws, to respond to subpoenas or warrants or assist in preventing any violation or potential violation of the law or this Agreement.
Copyright Complaints and Copyright Agent – DMCA Provision
- The Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Services infringe upon your copyrights, please send the following information to the Company’s Copyright Agent at TIAT@takeitawaytom.com Subjectline: Copyright Agents.
- A description of the copyrighted work that you claim has been infringed, including specific location on the Services where the material you claim is infringing is located. Include enough information to allow the Company to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
- We may terminate access, usage to the Platform, as the case may be, for repeat infringers in appropriate circumstances.
PRIVACY AND DATA SECURITY
Definition
“Personal Data” means any information that can reasonably relate to an identified or identifiable natural person (which may include certain Platform Data (as defined in this Agreement)), or that may otherwise be considered “personal data”, “personal information” or equivalent terms under applicable law. Personal Data is subject to the Company’s Privacy Policy, and may be modified or updated by the Company from time to time, effective upon posting of an updated version of the Privacy Policy and by using the Platform, User hereby consents and agrees to the Privacy Policy.
Restrictions
User agrees that (a) any Personal Data obtained from the Company shall be processed by Users solely for legitimate business purposes and retained only so long as necessary, (b) access to Personal Data obtained from the Company will be limited to User’s who have a legitimate business need to access such Personal Data, and (c) Users will not disclose Personal Data obtained from the Company to any third party, except as permitted under this Agreement. Platform Data (other than User Content (as defined below)) and any Personal Data obtained from the Company will at all times remain the property of the Company. User shall not rent or sell Personal Data obtained from the Company or the Platform for any purpose. User shall not use Personal Data obtained from the Company or the Platform in any way that (1) harms the Company or (2) violates applicable law.
Security
User agrees to implement appropriate legal, technical and organizational measures to protect Personal Data obtained from the Company against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach or attempted breach of User security measures (“Information Security Incident”). The User shall promptly notify the Company in the event that User learns or has reason to believe that an Information Security Incident has occurred including at least: (a) the nature of the breach of security measures; (b) the types of potentially compromised Personal Data; (c) the duration and expected consequences of the Information Security Incident; and (d) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, User will (1) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident, and (2) provide the Company with assurances reasonably satisfactory to the Company that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Incident occurs as a result of an act or omission of User, and if the Company determines that notices (whether in the Company or User’s name) or other remedial measures are warranted, User will, at the Company’s request and at User’s cost and expense, undertake the aforementioned remedial actions.
Confidentiality
No User may disclose any confidential information (including any trade secrets) that it may receive from the other Users or any of the User’s Representatives in the course of providing services hereunder to any third party without the prior written consent of the other User. No User may engage in any publicity, press activities, marketing or other public relations regarding the services provided hereunder and naming the Users(or, in the case of Carrier, identifying any Shipper, consignor or consignee for which the Carrier provides Services) without the mutual written consent of the User. In addition, Users shall not disclose to any third party any confidential information disclosed to User by any User or any consignor or consignee of a Shipment (or any affiliate of the foregoing) in the course of providing Services. Each Party shall protect any confidential information received hereunder with a reasonable degree of care. The obligations set forth in this Agreement-shall apply during the term of this Agreement until the second anniversary of the termination of this Agreement.
Notwithstanding this Agreement- No User may disclose confidential information (a) in connection with the performance of services hereunder to such User’s associates and its or their respective directors, officers and employees, as well as to its and their respective outside accountants, tax advisors and attorneys bound by a contractual or professional obligation to keep such information confidential, and (b) pursuant to a judicial order or other governmental requirement or request. In addition, notwithstanding the foregoing, “confidential information” shall not include any information that: (1) is already known to the receiving User at the time of disclosure or subsequently becomes known to the receiving Party, in each case, without violating any confidentiality obligation applicable to the receiving Party or any of its representatives; (2) is or becomes publicly known without violating any confidentiality obligation applicable to the receiving User or any of their associates; (3) is independently developed by the receiving User or any of its associates without reference to or use of any such confidential information; or (4) is disclosed with the prior written consent of the disclosing User.
Standard Contractual Clauses
To the extent this Agreement involves Personal Data of residents of jurisdictions outside the United States, User agrees that the Standard Contractual Clauses, as required by Article 26(2) of Directive 95/46/EC shall apply.
Consent to Share Telematics Data
For purposes of this Agreement, the following terms shall have the following meanings:
- (i) “Device Data” means location and other data that is created, captured, entered into or processed by any Telematics Device used by Users or any of its Representatives.
- (ii) “Telematics Devices” means telematics technologies and related hardware, equipment, software and services, including fleet management technologies, tracking technologies, electronic logging devices, vehicle or asset gateways, vehicle or trailer sensors, and visibility and/or location aggregators.
- (iii) “Telematics Provider” means a provider of Telematics Devices.
User hereby agrees to the transfer and transmission of its Device Data by Telematics Providers to the Company for the use at the Company’s sole discretion. Such transfer and transmission of Device Data to the Company may be made by the Telematics Provider or such other party as may be necessary to effectuate this transfer and transmission. User authorizes the Telematics Provider or such other parties to take such actions as may be necessary to effectuate the transfer and transmission of User’s and any of its Representatives’ Device Data to the Company. Such Telematics Providers shall be third-party beneficiaries of this User’s Consent to Share Telematics Data with the Company.
User hereby grants to the Company a non-exclusive, transferable, sublicensable, worldwide, fully-paid up, royalty-free and revocable (in accordance with User’s Consent to Share Telematics Data with the Company -The “Agreement”) license under its rights to the Device Data to use, distribute, reproduce, display, perform, copy, modify, and create derivative works based upon the Device Data. The Company may share such Device Data with third parties in accordance with its publicly available the Company Privacy Policy, as it may be updated from time to time in accordance with its terms, which is currently located here and is incorporated herein by reference (the “ Privacy Policy”).
The Parties acknowledge and agree that the Device Data may contain or reflect personal information, including User location data. User represents and warrants that it has all rights necessary, and has provided or will provide appropriate notice, and has obtained or will obtain any necessary consents from end users or other persons, for Users to share Device Data with the Company hereunder and for the Company to use any personal information contained or reflected therein for purposes of fulfilling its obligations under this Agreement or other purposes identified in the Privacy Policy.
The agreements set forth in this User’s Consent to Share Telematics Data with the Company shall remain in effect until the earlier of (a) the valid termination of this Agreement and (b) the termination by either Party of the obligations set forth in this User’s Consent to Share Telematics Data with the Company in accordance with this User’s Consent to Share Telematics Data with the Company. User may terminate this User’s Consent to Share Telematics Data with the Company by providing written notice to the Company via email at TIAT@takeitawaytom.com, with the subject line “[User’s email address] Device Data Sharing Termination Request.” User’s written notice of termination may also instruct the Company to cease receipt of certain data while continuing receipt of other data, in which case this User’s Consent to Share Telematics Data with the Company will remain effective with respect to the data access that User has not terminated. The Company may terminate this User’s Consent to Share Telematics Data with the Company by providing written notice to User in accordance with Notices. Promptly following termination of this User’s Consent to Share Telematics Data with the Company by either Party, the Company will take reasonable measures to terminate its receipt of Device Data from Telematics Providers. Termination of this User’s Consent to Share Telematics Data with the Company will not affect the Company’s rights with respect to any Device Data received by or licensed to the Company prior to such termination pursuant to this Agreement.
THIRD PARTY SITES AND LOCATION INFORMATION
Third Party Sites
The Platform might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of the Company and the Company is not responsible for any Third Party Sites. The Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
Location Information
Location data provided by the Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage, or other loss. Neither the Company, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Platform, whether provided by the Company, third party content providers, or Users.
Geolocational data that You upload, provide, or post on the Platform may be accessible to certain Users of the Platform. You assume any and all risk of providing such data to other Users of the Platform.
Texting User and Other User's Representatives
User, on behalf of itself and its Representatives, agrees to grant the Company permission to track the location of Users (including by tracking the location of Users’ devices) and of User’s Equipment and to share such location information with third parties, including applicable parties with cause. User is solely responsible for obtaining all Consents from each User’s Representatives necessary to enable the Company to send SMS messages or to otherwise contact each such User. User represents and warrants that it has obtained and recorded all Consents from each of the User’s Representative, and each User necessary to enable the Company to send SMS messages or to otherwise contact every such User, and to receive and use Device Data. User also represents and warrants that it has obtained and recorded all Consents from each User’s Representatives, including Representatives to enable the Company to send SMS messages or otherwise contact each such User for other promotional or transactional purposes. Users and User’s Representatives will have the ability and opportunity to opt out of receiving promotional messages.
OWNERSHIP
Take It Away Tom! owns intellectual property rights in and to the Platform and its Services, including but not limited to the Site, Mobile App, including all related software and servers, in and to our trademarks, service marks, trade names, logos, domain names, taglines and trade dress (collectively, “Marks”). Users acknowledge and agree that Take It Away Tom! owns all right, title, and interest in and to the Platform and its Services, including all intellectual property rights therein. Users understand and agree that without a written license agreement with Take It Away Tom!, Users may not make any use of the Marks. Except as expressly granted in this Agreement, all rights, title and interest in and to the Platform and its Services, and in and to the Marks are reserved by Take It Away Tom!.
Titleship to the Platform
User acknowledges that User and its Clients receive no title to the Platform or Services contained on the Platform. Title to the Platform and all copyrights in Platform shall remain with the Company.
The Company agrees to defend or, at its option, settle any claim or action against a User to the extent arising from a third party claims that a permitted use of the Platform by the end User infringes any U.S. patent or copyright, provided the Company has control of such defense or settlement negotiations and User gives the Company prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, the Company, at its option, may provide the User with a substitute Platform reasonably satisfactory to User to replace those affected by the Platform in the Users account inventory. The Company will not be liable under this Agreement if the infringement arises out of User’s activities after the Company has notified User that the Company believes in good faith that User’s activities will result in such infringement. The foregoing states the entire liability of the Company with respect to infringement of intellectual property rights.
PROPRIETARY RIGHTS
Publicity
User consents to the Company identifying Users as a Users/client/customers of the Company in any publicity, press activities, marketing or other public relations and grants the Company and its affiliates permission to use the name and logo of Users in connection therewith.
Privacy/Data Collection
User will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any end-user data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. The User will act only on the Company’s instructions in relation to the collection, use, disclosure and processing of any such end-user data, but in all instances in accordance with all applicable laws, rules and regulations.
Ownership
Take It Away Tom! is and shall remain the owners of all right, title and interest in and to the Take It Away Tom! Platform and the Services and its other products and technologies including any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to the User or User’s Representatives in connection with this Agreement.
Confidentiality
The User agrees that they shall not use or disclose any of the contents of this Agreement including but not limited to, content obtained for the Platform or from Services rendered, all sales and marketing information received from each other or from Shippers, Shippers customers, Brokers, Affiliates, or Carriers providing transportation services to them, financial information received, brokerage fees charged and received, non-brokerage fees charged and received, amounts charged to and paid by Users, consignees or others responsible for payment, amounts of freight charges billed and received, and motor carrier rates, given or exchanged with any person or entity except as necessary to conduct the business contemplated hereunder.
Trade Secrets and Source Code
User recognizes that the Platform in source form (code or listing) is the exclusive property of the Company and is proprietary to and the trade secret of the Company. The User agrees that it shall not, by itself or in association with any other party, reproduce, duplicate, copy, decompile, disassemble or reverse engineer the Platform in source form (code or listing) in any media.
The User shall further hold in confidence and shall not disclose any information, algorithms, methods, designs, specifications, and/or know-how in any way relating to the Platform in source form (code or listing) to any other person, firm or corporation whether during the term of this Agreement or after such Agreement has been terminated.
The User shall not have the right to modify the source code to make adaptations to the Platform in conjunction with the sale of the Platform without the written consent of the Company. In the event of modified source code, only the modified portion of the code becomes the property of the User, and the User shall treat the modified source code with the same care as with the Company source code.
Trademarks and Service Marks
Any tradenames, trademarks or service marks, which the Company may obtain with regard to the Platform, are the sole property of the Company. The Company hereby grants the User, during the term of this Agreement, the right to use Company and/or Company trade names, trademarks or service marks on the Platform or in advertising or promotion relating directly to the Company Platform and Services. Any use of such tradenames, trademarks or service marks must reference that these tradenames, trademarks or service marks are proprietary to Take It Away Tom! and/or its associates.
"User's" Obligations
The User will make no use of Confidential Information for any purpose except as expressly authorized by this Agreement. Except as expressly provided in this Agreement, User will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, the User will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the Company. In the event that the User is required to disclose Confidential Information pursuant to law, the User will notify the Company of the required disclosure with sufficient time for the Company to seek relief, the user will cooperate with the Company in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
Changes to this Agreement
The Company reserves the right, at any time, to modify, suspend, or discontinue the Platform, Services, and the Technologies associated or any part thereof with or without notice. User agrees that the Company will not be liable to the User or to any third party for any modification, suspension, or discontinuance of the Platform, Services, Technology, or any part thereof.
This Agreement is subject to amendment, revision and/or update by the Company from time to time. Changes that are not material will be effective immediately upon the posting of such changes to this Agreement (it being understood that this Agreement will be posted and publicly available on the internet). If any material changes are made by the Company to this Agreement, the Company will notify the User that this Agreement has been revised via electronic mail, a notification within the Platform (which may be a general notification made to all Users) or other means of written communication. Any such material changes to this Agreement will be effective upon the earlier of (a) the date User accepts the updated version of this Agreement or (b) thirty (30) calendar days following the Company’s notice to Users of the changes.
Price Changes and Notification
The Company reserves the right to change its process and/or fees, from time to time, in its sole and absolute discretion. In the event of a price and/or fee change for the Platform or Services, the Company shall notify all Users in writing thirty (30) days prior to the effective date of any such change. All other prices and/or fees may be adjusted without prior notice to Users.
Platform Modifications and Version Upgrades
The Company shall supply User access to all major published modifications or upgrades to the Platform, which add enhancements to or correct known errors in the Platform.
The Company shall provide User access to the Platform for each registered User Representatives so long as the User is not in default with any terms of this Agreement.
User shall notify the Company in writing of any errors found by the User in the Platform within thirty (30) days of such discovery.
The Company will undertake all reasonable efforts to provide technical assistance to the User under this Agreement when User is unable to resolve certain technical issues and to rectify or provide solutions to problems where the Platform does not function as described in the Platform documentation, the Company does not guarantee that the problems will be solved or that any item will be error-free. This product support commitment is only applicable to the Company’s Platform running under the certified environments specified in the release notes for that Platform or Service.
The Company may from time to time, discontinue the Platform or versions and stop supporting the Platform or version one year after discontinuance, or otherwise discontinue any support services. The Company is not liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if the User, the User’s Representatives, or the User’s Customer has been advised of such claims. The Company’s liability shall not exceed the fees that User has paid under this Agreement. User agrees that the pricing for the Platform and Services would be substantially higher but for these limitations.
WARRANTY AND DISCLAIMER OF LIABILITY
User agrees not to use the Platform to upload, transmit, display, or distribute any User Content that: (1) 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; or (2) 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.
In addition, User agrees not to use the Platform 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 Platform or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to or used together with the Platform, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Platform and Services; or (g) introduce software or automated agents or scripts to the Platform so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Platform.
The Company reserves the right to review any User Content, investigate, and /or take appropriate action against you in its sole discretion, including removing or modifying User Content, terminating your Account, and/or reporting you to law enforcement authorities. However, the Company has no obligation, to monitor, modify or remove any User Content.
Mutual Warranties
Each party represents and warrants that: (a) such party has the full right, power and authority to enter into this Agreement; and (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such User is a party.
User Warranties
User represents and warrants that: (a) User has all rights and permissions necessary to provide the Company with any information provided in connection with the Platform, Services, or User information; (b) User is in compliance, and shall remain in compliance during the term of this Agreement, with all applicable local, city, municipal, provincial, state, federal, national, and international laws, rules and regulations; and (c) User has all necessary consents and authorizations from its associates(or other parties as applicable) to tender Shipments under this Agreement. User agrees to defend and indemnify Take It Away Tom! and it’s associates against any claim’s relating to a breach or alleged breach of this Agreement and against any claim asserted against the Company or its associates by an associate of the User that relates to any Shipment tendered by User hereunder; provided that if the Company reasonably determines that the User is not diligently defending any such claim, Take It Away Tom! may defend the claim with outside counsel of its choosing at the expense of User.
Warranties by Users
User agrees that any and all warranties made to any Users by any other User, shall remain with the User who made the warranties. User acknowledges and agrees that Users will make no representations to other Users with respect to any warranty “made” by the Company. User hereby agrees to indemnify and hold the Company harmless for any loss, damage, claim or action resulting from the User’s failure to comply with any of the User’s obligations under any agreement outside of this Agreement. User will be solely responsible for any claims, warranties or representations made by the User or the User’s representatives or agents, which differ from the warranties, provided by this Agreement.
Disclaimer of Warranties
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” TAKE IT AWAY TOM! EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. TAKE IT AWAY TOM! MAKES NO WARRANTY THAT THE SERVICE: (a) WILL MEET YOUR 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. TAKE IT AWAY TOM! IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
USER AGREES THAT THE ENTIRE RISK ARISING OUT OF USERS USE OF THE PLATFORM, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH THE USER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
TAKE IT AWAY TOM!’S PLATFORM AND SERVICES MAY BE USED BY USER TO REQUEST AND SCHEDULE SHIPMENT SERVICES WITH OTHER USERS, BUT YOU AGREE THAT TAKE IT AWAY TOM! HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES OR ANY SHIPMENT SERVICES COORDINATED OR OFFERED OR PURCHASED BY YOU THROUGH THE PLATFORM OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. USER ASSUME ALL LIABILITY AND RISK OF USING THE PLATFORM AND COORDINATING AND/OR OFFERING SHIPMENT SERVICES.
TAKE IT AWAY TOM! RESERVE THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN USER AND OTHER USERS. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE SITE OR THROUGH THE PLATFORM OR RELEASE TO OTHER USERS. TAKE IT AWAY TOM! DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF PLATFORM USERS (INCLUDING UNAUTHORIZED USERS, OR “HACKERS”). TAKE IT AWAY TOM! ONLY OFFERS TECHNOLOGY THAT ENABLES USERS TO COORDINATE SHIPMENT SERVICES. TAKE IT AWAY TOM! IS NOT A CARRIER. WE ARE NOT INVOLVED IN THE ACTUAL TRANSPORTATION, SHIPPING, OR BROKERING OF SHIPMENTS. AS A RESULT, WE HAVE NO CONTROL OVER THE QUALITY OR SAFETY OF ANY VEHICLE, SHIPMENTS OR OF THE TRANSPORTATION THAT OCCURS AS A RESULT OF THIS SERVICE; NOR DOES TAKE IT AWAY TOM! HAVE ANY CONTROL OVER THE TRUTH OR ACCURACY OF ANY USERS’ INFORMATION LISTED ON THE PLATFORM. WE RESERVE THE RIGHT TO CHANGE ANY AND ALL CONTENT, SOFTWARE AND OTHER ITEMS USED OR CONTAINED IN THE SERVICES AT ANY TIME WITHOUT NOTICE.
THE PLATFORM MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. TAKE IT AWAY TOM! ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS. TAKE IT AWAY TOM! IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY TELEPHONE NETWORK OR SERVICE, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER OR MOBILE PHONE EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER’S OR TO ANY OTHER PERSON’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICES.
Limitation of Liability
TAKE IT AWAY TOM! SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TAKE IT AWAY TOM! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TAKE IT AWAY TOM! SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (a) YOUR USE OF OR RELIANCE ON THE PLATFORM OR YOUR INABILITY TO ACCESS OR USE THE PLATFORM; OR (b) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY OTHER USER OR ANY THIRD PARTY. TAKE IT AWAY TOM! SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TAKE IT AWAY TOM!’S REASONABLE CONTROL. IN NO EVENT SHALL TAKE IT AWAY TOM! BE LIABILE TO YOU IN CONNECTION WITH THE SERVICE RECIEVED FOR DAMAGES, LOSSES AND CAUSES OF ACTION. TAKE IT AWAY TOM! PROVIDES A PLATFORM TO ACCESS SERVICES FROM PROVIDERS. TAKE IT AWAY TOM! IS THE PROVIDER OF THE PLATFORM, NOT SERVICES RENDERED FROM THE PLATFORM.
THE LIMITATIONS AND DISCLAIMER IN THIS AGREEMENT, DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
THE ASSUMPTION OF RISK AND LIMITATION OF LIABILITY SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE AGREEMNT BETWEEN TAKE IT AWAY TOM! AND YOU.
user TIME LIMITATION TO BRING ACTION
REGARDLESS OF ANY OTHER STATUTE OF LIMITATIONS PROVIDED UNDER APPLICABLE LAW, NO CLAIM, LITIGATION OR ACTION OF ANY KIND, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT AND/OR THE TAKE IT AWAY TOM! PLATFORM MAY BE BROUGHT BY USER AGAINST TAKE IT AWAY TOM! MORE THAN TWO YEARS AFTER THE OCCURRENCE OF THE CIRCUMSTANCES UNDERLYING SUCH CLAIM, LITIGATION OR ACTION.
Disputes
In the event of a dispute arising out of this Agreement the Parties shall provide each other with 15 days prior detailed written notice in which to “cure” any alleged default. If no “cure” is completed (or is not substantially in process), legal proceedings may not be commenced more than two (2) years from date of the last occurrence of default, or incident in the state(s) in which either of them have their principal offices. The prevailing Party in any legal proceeding shall be entitled to recover reasonable attorney fees. Unless preempted or controlled by federal transportation law and regulations, the laws of the state of the Party commencing legal proceedings shall be controlling without regard to conflicts of laws principles. The User waves all objections to Venue and Jurisdiction of States hereunder this agreement between the User and the Company.
Indemnification by User
User agrees to defend, indemnify, and hold the Company harmless, each User, each consignor, consignee and receiver of any Shipment, and the associates of each of the foregoing, as well as the respective directors, officers, employees, agents and representatives of each of the foregoing (collectively, the “Indemnified Parties”), from and against all losses, liabilities, damages, claims, judgments, fines, penalties, interest, costs or expenses, including reasonable attorney’s fees, arising out of or related to the transportation of any Shipment, the performance of any other Services or the breach of this Agreement by a User or any User’s Representative (collectively, the “Indemnified Claims”), including Indemnified Claims for or related to personal injury (including death), property damage, payments to Drivers, data protection and security, confidentiality, privacy, identity theft, personal information, or User’s possession, use, maintenance, custody or operation of Equipment or of equipment that is owned by a party other than the Company.
Notwithstanding the foregoing, User’s defense, indemnification and hold harmless obligations under Indemnification by User-Notwithstanding will not apply to the extent that any Indemnified Claim is determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of an Indemnified Party. Each User and each consignor, consignee or receiver of any Shipment, and the associates of each of the foregoing, as well as their respective directors, officers, employees, agents and representatives is each a third-party beneficiary of this Indemnification by the User and is entitled to enforce the obligations of the User set forth in this Indemnification by User directly against such as, other Users as if such Indemnified Party was a party hereto. To the extent permitted by Applicable Law, User hereby expressly waives any exclusive remedy defense, including any such defense available under any workers’ compensation or other occupational accident statutory regime, to the extent that any such defense conflicts with the User’s obligations under this Indemnification by User.
USER SHALL PAY AND REIMBURSE, ANY AND ALL DIRECT OR INDIRECT LOSS, LIABILITY, DAMAGE, CLAIM, FINE, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR IN ANY WAY RELATED TO THE PERFORMANCE OR BREACH OF THIS AGREEMENT BY USER, ITS EMPLOYEES, SUBCONTRACTORS, OR INDEPENDENT CONTRACTORS (COLLECTIVELY, THE “CLAIMS”), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR OR RELATED TO PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND USER’S POSSESSION, USE, MAINTENANCE, CUSTODY OR OPERATION OF THE EQUIPMENT; PROVIDED, HOWEVER, THAT USER’S INDEMNIFICATION AND HOLD HARMLESS OBLIGATIONS UNDER THIS PARAGRAPH WILL NOT APPLY TO THE PRORATED EXTENT THAT ANY CLAIM IS DIRECTLY AND PROXIMATELY CAUSED BY THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF THE PARTY TO BE DEFENDED, INDEMNIFIED OR HELD HARMLESS. USER HEREBY EXPRESSLY WAIVES ANY EXCLUSIVE REMEDY DEFENSE, INCLUDING, BUT NOT LIMITED TO, THOSE AVAILABLE UNDER ANY WORKERS’ COMPENSATION OR OTHER OCCUPATIONAL ACCIDENT STATUTORY REGIME, TO THE EXTENT NECESSARY TO EFFECTUATE USER’S OBLIGATIONS UNDER THIS PROVISION.
Indemnification of Take It Away Tom!
You agree to defend, indemnify and hold the Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (a) use of the Platform or provided Services; (b) User Content; (c) interaction with any other User; (d) violation of this Agreement; (e) violation of applicable laws or regulations; or (f) your shipment. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the Company’s prior written consent. The User will use reasonable efforts to notify the Company of any such claim, action or proceeding upon becoming aware of it.
Indemnification of you
By this Agreement, all Users’ and the Company agree to defend, indemnify and hold you (and your officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of their performance under this Agreement, to the extent such damages, claims or losses are caused by the negligence or intentional conduct of the other User or their User Representatives, Employees, Affiliates, Associates, or Agents.
Indemnification of Shippers
You agree to defend, indemnify and hold Shippers (and their officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of your performance of this Agreement, to the extent such damages, claims or losses are caused by you or your employees’ or agents’ negligence or intentional conduct.
Indemnification of Brokers
You agree to defend, indemnify and hold the Affiliate Broker (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by your or your employee’ or agents’ negligence or other intentional conduct.
Indemnification of Co-Brokers
You agree to defend, indemnify and hold the Co-Affiliate Broker (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by your or your employee’ or agents’ negligence or other intentional conduct.
Indemnification of Carriers
You agree to defend, indemnify and hold Carrier (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by your or your employee’ or agents’ negligence or other intentional conduct.
Indemnification of Affiliates
You agree to defend, indemnify and hold Affiliate Marketer (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by your or your employee’ or agents’ negligence or other intentional conduct.
Furthermore
In recognition of the fact that each of the Parties has invested substantial effort and money in developing its customers and each Party may separately procure new accounts during the term of this Agreement, the Parties expressly agree that:
Unless the Parties notify each other in writing prior to transportation of any shipment, of greater freight values, the Parties indemnification obligations for freight loss and damage shall not exceed $75,000.00 for any one shipment.
Dispute Resolution
In the event of a dispute arising out of this Agreement related to claims by or against the Company, a User’s recourse shall be exclusively settled through binding and confidential arbitration.
Binding Arbitration
Binding Arbitration shall be subject to the Federal Arbitration Act. The arbitration shall be conducted before one arbitrator from the Transportation ADR Council, Inc. (“TAC”). Arbitration proceedings shall be conducted under the rules of the TAC. Subject to Dispute Resolution- Third-Party Actions and Small Claims, any dispute, controversy, or claim arising out of or relating to this Agreement or the relationship of the Users, including the interpretation, enforceability, performance, breach, termination or validity thereof, must be solely and finally resolved by confidential and final arbitration, administered in Nevada via tela-conference (as determined by the Company). An award rendered in connection with arbitration pursuant to this Agreement shall be final and binding upon the Parties, and judgment upon such an award may be entered and enforced in any court of competent jurisdiction. Nothing in this Agreement shall limit the rights of either Party to obtain provisional, injunctive or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration. Neither Party has the right to arbitrate on a class action basis for any dispute, controversy or claim arising out of or relating to this Agreement or the relationship of the Parties, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including this Dispute Resolution. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding Governing Law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. § 1-16).
Delegation
Delegation of the above arbitration provision applies to any and all disputes, controversies or claims about the scope, applicability, enforceability, legality, or waiver of this Dispute Resolution. For the avoidance of doubt, all such matters are delegated to arbitration to be finally resolved by an arbitrator in the location specified in this Agreement and administered by TAC.
Negotiation
Before submitting an arbitration demand, the Party bringing the claim shall first attempt to informally negotiate with the other Party, in good faith, a resolution of the dispute, claim, or controversy between the Parties for a period of not less than 90 days.
Third-Party Action and Small Claims
Notwithstanding Dispute Resolution- Binding Arbitration and Delegation:
- If the Company is involved in a third-party action or proceeding in any jurisdiction or venue arising from or related to the Platform provided to Users pursuant to this Agreement, User consents to jurisdiction and venue in the court where such action or proceeding is pending.
- With respect to any dispute, controversy or claim arising out of or relating to this Agreement in which the relief sought is limited to monetary damages and is within the monetary limit of a small claims court in which venue and personal jurisdiction is proper, then each Party must pursue such claim in such small claims court (as opposed to binding arbitration pursuant to Dispute Resolution- Binding Arbitration).
Additionally
Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the TAC. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
Arbitration proceedings shall be conducted in Las Vegas Nevada via tela-conference, or at such place as mutually agreed upon in writing by both parties. At any time, either party may apply to a court of competent jurisdiction in Las Vegas Nevada for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
The parties may also proceed in Small Claims Court in Las Vegas Nevada to resolve any dispute where reasonably expected damages are less than $10,000. Unless preempted or controlled by federal law and regulations, this agreement shall be interpreted and enforced according to the laws of the State of Nevada.
This Section does not apply to claims you may have against a other Users.
Miscellaneous
Users may not assign or transfer this Agreement in whole or in part without the prior written consent of the Company. The Company may assign this Agreement to any Associate of the User or to any acquiror (or Associate thereof) in connection with the sale of all or substantially all of User’s equity, business, or assets. This Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assignee’s.
The Parties expressly waive any and all rights and remedies provided by Part B to Title IV of Title 49 to the U.S. Code to the extent such rights and remedies conflict with the provisions of this Agreement. Without limiting the foregoing, User expressly waives any right it may have to access or review records pursuant to 49 C.F.R. § 371.
Failure of the Company to insist upon Carrier’s performance under this Agreement or to exercise any right or privilege arising hereunder will not be a waiver of any of the Company’s rights or privileges herein.
Upon the Company’s request, User will provide documents evidencing compliance with the terms of this Agreement, as well as written records of all Shipments transported hereunder, regardless of whether this Agreement remains in effect at the time of such request.
When providing Services, User and User’s Representatives must comply with the Company Non-Discrimination Policy and observe the Company’s written standards of operations provided in the Company’s policy and procedures. The Company and its Associates prohibit discrimination against anyone based on race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under applicable law. In addition, aggressive, confrontational, and harassing behavior is not allowed. Any Users Representative found to have violated these prohibitions will lose access to the Platforms.
All references to “dollars” or “$” refer to U.S. dollars. The words “include,” “includes” and “including” as used in this Agreement shall be read as followed by the words, “without limitation,” whether or not such words appear in each instance herein.
Subcontractors/Co-Brokers
You shall not re-broker, co-broker, subcontract, assign, or cause or permit any other person or entity to perform any of your obligations hereunder, or cause or permit any Shipment tendered hereunder to be transported by any other third-party carrier, or any other substitute mode of transportation, without the express written consent of the Company, the Broker, and the Shipper. If User breaches this provision, without limiting any other right of the Company or other Users, Breaching Party shall remain fully liable pursuant to this Agreement as if it had transported the Shipment on vehicles operating under its for hire motor carrier authority (including liability for Shipment loss and damage claims and including the duty to defend, indemnify and hold harmless against the acts and omissions of Carrier and its contractors). User acknowledges and agrees if any third party makes a claim against the Company or other Users with respect to Shipments tendered to Carrier for transportation hereunder, the Company may pay such third party directly and shall have no duty to pay the violating User with respect to any such Shipment. The Company shall have the right to offset the amount of payment to such third party against any funds due and owing to the Company due to Users breach of this provision. Further, the Company shall have the right to claim and collect any damages, including consequential, incidental, incidental and indirect damages from Users arising out of a breach of this provision.
Non-Solicitation BY User
During the term of this Agreement, and for a period of one (1) year from its termination, you shall neither initiate nor accept any direct or indirect business relationship with any User where Service to or from such User were first Serviced pursuant to the Platform, or in connection with the use of the Service, or introduced by the Company. Your obligation in this regard extends to instances where a User contacts you and seeks to establish a business relationship that does not include the Company. This provision shall continue in force beyond termination of this Agreement for one (1) year subsequent to termination if:
(a) the availability of such User first became known to a User during the course of performing Services on the Platform or;
(b) the traffic of the User was first tendered to User by the Company. Notwithstanding the prior sentence, User may participate in and accept freight transportation awards from a User if the award is received as a result of User’s participation in a formal bidding process conducted by such User.
If you book or otherwise makes available any direct or indirect business relationship with any User that was first introduced to you by the Company is in violation of this Agreement, you shall be jointly and severally liable with the other violating User to the Company for each such violation in an amount equal to twenty-four percent (24%) of all revenues paid and received by the Users in violation of this Agreement.
Term, Termination, and Post-Termination Survival of this Agreement
term
This Agreement shall commence upon the User’s initial use of the Platform, acceptance of this Agreement will remain in full force and in effect while User uses the Platform, this Agreement and shall remain in effect until terminated as set forth herein.
The Company may at any time terminate this Agreement in its sole discretion if (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) The Company is required to do so by law (for example, where the provision of the Service to User is, or becomes, unlawful); (c) The Company has elected to discontinue the Service; or (d) for poor performance/conduct by User and is in the Company’s sole discretion. Upon termination of this Agreement, User Admin Account and right to access and use of the Platform and the Service will terminate immediately.
Termination
Either party may terminate this Agreement with or without cause upon five (5) days’ advance written notice to the other party; provided that notwithstanding any such notice from User or Users’, this Agreement will remain effective and binding on User for so long as the User accesses or uses the Services or the Platform. All outstanding payment obligations under this Agreement shall survive the termination of this Agreement.
Termination of this Agreement shall not relieve either Party from completing and performing their obligations to each other and to other users, or any of the obligations arising out of the terms contained in this Agreement. Unless otherwise provided herein, or agreed in writing in advance, neither Party shall be liable to others for consequential damages of any kind.
Either party may cancel this Agreement upon the occurrence of any of the following:
- Material breach of any covenant, term, condition or other provisions of this Agreement, which breach is not remedied within ten (10) days after notice of such breach is received by the breaching party;
- Bankruptcy, reorganization, arrangement or insolvency proceedings being instituted by or against a party;
- An assignment by a party for the benefit of its creditors;
- Consenting to the appointment of a trustee or receiver by a party, or a trustee or receiver being appointed for a party or for a substantial part of its assets.
Upon termination or cancellation of this Agreement for any reason:
All obligations of the non-breaching party, should cancellation be due to breach, shall immediately cease;
User shall return any and all full and/or partial copies of material related to the Platform, including shipping documents, in User’s possession or under its control to the Company within ten (10) days following the termination or cancellation date of this Agreement;
User shall not continue to use or employ any part of the Platform as part of any product or Service in which User offers;
User shall immediately cease advertising, marketing, promoting and distributing the Platform and shall cease using the trade names, trademarks, service marks and any other proprietary right of Company;
Except as otherwise permitted in writing by Company, User shall immediately cease selling providing application and technical support for the Platform to users;
- All outstanding invoices shall immediately become due and payable; and
User acknowledges and agrees that, in the event of a breach or threatened breach by the User, of the provisions in this Agreement, no adequate remedy at law in money damages will be available to Company that will unfairly enrich it and therefore Company will be entitled to an injunction against any such breach or threatened breach by the User.
Post-Termination Survival
The term of this Agreement shall continue indefinitely until terminated in accordance with the terms hereof. Users may terminate this Agreement at any time for any reason upon written notice to the Company. User may terminate this Agreement at any time upon five business days’ prior written notice to the Company; provided that if User thereafter provides any Services or requests any Services, this Agreement will apply to such Shipments and Services. Cargo Loss, Damage or Delay through Non-Solicitation by Users, Users Consent to share (with respect to Device Data shared prior to such termination) and this Agreement through Dispute Resolution will survive the termination of this Agreement. In addition, any rights and obligations of either Party with respect to matters that occurred prior to the termination of this Agreement will survive such termination.
DESCRIPTION OF SERVICES
The Company provides a platform via the Mobile App and our Website (defined above as the “Platform”) so that Users may submit and tender Shipments through the Platform for Services.
Once the Platform accepts a Shipment for posting, the Shipment’s details, as provided by the Shipper or the Broker, will be posted to the Platform for Service. The Shipper may cancel a Shipment at any time prior to a Carrier accepting the shipment. Carriers and Brokers may view a list of Shipments available to the Users at any time and accept a Shipment through the Platform. Once a Carrier or Broker accepts a Shipment, the Designated Carrier will be assigned to perform transportation services related to the Shipment.
The Platform will notify the Shipper that the Shipment has been accepted. The Platform will also notify the Carrier that, the Shipment has been assigned to that Carrier; PROVIDED, however, that the Company does not guarantee that attempts to post or accept any Shipments will be successful. The Platform Algorithm, Shipper, or the Broker may assign Shipments to Carriers whom accepted the posting. If the original Carrier assignment fails for whatever reason, the Shipment will be re-posted or reassigned on the Platform to the reserve Carriers or an unassigned Carrier in the region if, reserve Carriers are no longer available.
Within a reasonable time after accepting tender of Shipment for transport, the Shipper, Broker, or Carrier shall upload to the Platform all documents for transport, including a bill of lading for the shipment or select to use the Bill of Lading generator. Users shall not name the Company as a Shipper, Broker, Carrier, or Consignee on any bill of lading. The Company is not responsible for any Shipment terms entered into between Carrier, Broker, Shipper, or Consignee.
Unless otherwise agreed, Shipment charges stated in the Platform and agreed to by Carriers acceptance of the Posting/Shipment hereunder include the transportation of the Shipment from origin to destination; the cost of any fuel, tolls, ferry charges or other expenses related to the operation or maintenance of the Carriers equipment; and any other specialized services or equipment contemplated in the load tender (including, but not limited to amounts for refrigerated trailers, lift-gate service, loading or unloading, etc.). If any additional services not contemplated at the time a Shipment is posted and are provided by the Carrier. The Carrier will use its best efforts to provide the Company and Broker as advance notice as available of any and all unspecified ancillary services or costs incurred so that the Broker and the Company may attempt to obtain the Shippers approval of such charges. Absent accessorial and/or ancillary service changes prior to the agreement between Shipper and Carrier, the Company does not and can not guarantee that invoices for accessorial and/or ancillary services will be paid.
Once a Shipment is completed, Carriers shall post to the Platform a proof of delivery signed by the authorized recipient within 24 hours of delivery.
The Company may, as a convenience and value added service, provide you through the Platform with access to GPS services, Google Maps or similar service to suggest routing. However, any such routing information is for Users convenience only. It is not instructional or mandatory.
Shipment Requests
The Company provides a Platform via the Mobile App and Website (defined above as the “Platform”) through which you may submit a proposed Shipment for Serivce. You must provide the following information as part of requesting a Shipment:
- The origin and destination addresses for the Shipment;
- The requested dates for pickup and drop-off of the Shipment;
- A description of the Cargo being transported as part of the Shipment (including weight and dimensions);
- Any and all accessorial and/or ancillary items;
- The specific equipment requirements; and
- Any other information necessary for the safe and proper handling, loading, transportation, and drop-off of the Shipment.
Cargo Description and Disclosures
ALL USERS shall disclose to the Company all information reasonably necessary for the Company to record the transportation transaction in compliance with applicable regulatory, legal and industry standards. ALL USERS shall also be responsible and liable for providing accurate description of cargo including without limitation commodity type, dimensions and weight, and any special handling requirements. ILLEGAL ITEMS AND ITEMS PROMOTING ILLEGAL ACTIVITY ARE NOT PERMITTED ON THE PLATFORM. ANY DISCOVERED CRIMINAL ACTIVITY PERPETRATED ON THE PLATFORM WILL BE TURNED OVER TO LAW ENFORCEMENT WITHOUT NOTICE TO YOU.
CARRIER and Broker SELECTION
The Company establishes and follows written procedures to evaluate Carriers and Brokers prior to their use on the Platform. The Company continues to evaluate certain Users at certain intervals, as set forth by the Company’s internal risk management and the Carrier and Broker selection policies, which may be amended from time to time with or without notice to Users. The Company is not responsible in any way for the acts and/or omissions of Users or their Associates.
The Platform provides a means for Shippers, Brokers, and Carriers to rate and review each other and to have those ratings made available to other Users. We do not express any opinion, nor does the Company make any assurances regarding, the truth or accuracy of any User reviews or ratings. The Company does not regularly monitor or remove reviews or ratings, or any portion thereof, unless they contain content we deem inappropriate.
Shipping Documents
Users shall not insert “Take It Away Tom!” or “Take It Away Tom!, Inc.” on any receipt, bill of lading, manifest, or other shipping document. In the event a User does so, such insertion shall be deemed to be for the Users convenience only, or due to the Users oversight, and shall not operate to alter the Company’s status as a Software Company or Broker, the Carrier’s status as the responsible Carrier, or the Shipper as the responsible Shipper, etc. The provisions set forth in any shipping document maintained by a User (including, but not limited to, any bill of lading, proof of delivery, motor carrier tariff, rate confirmation sheet or other documentation) shall not apply to any transportation performed pursuant to Compliance with Instructions
Compliance with Instructions
Users shall comply with any and all instructions regarding the handling of Shipments which are communicated from one User to another or to the Company, whether pursuant to the Service or Platform, on the applicable bill of lading, or via other load tender documentation provided to Users in association with a Shipment. In addition, Carrier shall, and shall cause its drivers, to comply with facility rules in effect at any locations where Carrier is performing pick-up or delivery services.
Users understand and agree that the Company, from time to time, enters into master transportation contracts or like documents with certain shippers. Such contracts often provide that their terms preempt and govern over any term within a bill of lading or other shipping document that conflicts or is otherwise inconsistent with the contracts. To the extent any transport a Carrier undertakes hereunder is governed by a contract between the Company, Broker, and a shipper containing such a clause, you agree that any bill of lading or other document you issue shall be subordinate to and preempted by such contract’s terms. The Company, the Shippers, or the Carriers designated Broker will advise Users on request as to whether any such master transportation contract or like document containing a preemptive clause exists with respect to specific shipments undertaken. Users further understand and agree that such contracts or like documents may contain terms restricting the extent to which Carriers may be entitled to collected charges for accessorial and ancillary services, in which event the Company will not pay related charges notwithstanding any advance notice.
Equipment acceptance and denials
Shippers shall bear the maximum responsibility allowed by law to review and accept or decline the Carrier’s trailer for cleanliness, odor, leaks, dirt or other conditions that may be unacceptable to Shippers and their Receivers. If a trailer or any equipment is unacceptable, it is the Shippers responsibility to refuse loading of the trailer. In such event, Shipper may notify the Company or the designated Broker immediately and request alternative arrangements. Shippers should ensure in the coordination with the Carrier that adequate blocking, bracing and packaging for the safe stowage of cargo is used.
Shipment Securement Acknowledgement
All Users acknowledge that the Company or Broker will never be in possession of any Shipment being transported in connection with the use of the Platform, and that the Company and the Broker will not be responsible or have any role in the securement of Shipments for transportation. (Please refer to designated user sections for more previsions with regard to Shipment Securement.)
Bills of lading and proofs of delivery
Carriers are encouraged hereunder and are instructed to issue bills of lading to their Broker, Shippers, and consignees as required by 49 USC §14706(a)(1), and to upload copies of those bills of lading to the Portal. Users may also use the Bill of Lading Generator. Users are instructed not to name the Company as either a Carrier, Broker, Shipper, or consignee on any bill of lading.
As a value added service to you, but not as any legal or contractual obligation, the Company may provide Shippers, Brokers, and Carriers with trouble shooting, tracking, inquiry, and other services. In order to do so, however, the Company must have access to the bill of lading issued to the shipment. In the event a Carrier fails to post a bill of lading to the Platform, we may request that the Shipper or Broker to upload the document, or otherwise to use the Bill of Lading Generator to make it available to the Company via the Platform.
Completion of the Shipment
The Company and Brokers instructs Carriers to upload to the Platform a proof of delivery signed by the consignee or authorized representative once Shipments are completed, and to send the Broker any questions or concerns regarding the Shipment to be conveyed to the Company and/or Shipper.
TRANSPORTATION AND OTHER PROVISIONS
The Carrier shall be solely responsible for (a) controlling the method, manner, and means of accomplishing the Carrier’s Platform obligations for services, (b) the acts and omissions of each of its employees, agents, contractors, independent contractors, subcontractors and other Platform providers, (c) complying with all laws and regulations applicable to the motor carrier,(d) any cargo loss or damage in accordance with applicable United States federal law, and (e) completing the Carriers Platform Completion Process in accordance with any pickup or delivery instructions. The Company does not assume any liability or financial responsibility for cargo, including any loss, theft, damage, or delayed delivery thereof.
In addition, the Company may tender loads sent to it by Users to the Platforms Brokers to arrange and assign Shipments for transportation by a third-party Carriers on the Platform, in which case Users agree that the Broker will be responsible for the selection, assignment, and dispatching of the transporting Carrier.
User agrees that (1) the amount the Company pays to Carrier or Brokers for transportation is proprietary business information of the Company that will not be provided to User, the Platform Standard Fees are openly posted in this Agreement, as well as on the Platform and Site. The User expressly waives any rights it may have under 49 CFR 371.3 to require such information from the Company; (2) The Company may disclose information about the nature, kind, quantity, destination, consignee, routing of property and similar information relating to User’s shipments from Shippers or Brokers using the Platform and (3) coverage of loads tendered to Platform is dependent on Carrier availability.
User agrees that it will not tender to the Platform for brokerage or to any carrier engaged by the Company in connection with this Agreement any cargo containing any (i) hazardous materials, chemicals, or dangerous goods; (ii) household goods; (iii) illegal goods; (iv) commodities of extraordinary or unusual value or (v) garbage, refuse, or trash, without proper authorizations and permitting. THE COMPANY DOES NOT WARRANT ANY CLAIMS OF THE LEGAL AUTHORIZATION OF A CARRIERS TO TRANSPORT ANY OF THE ABOVE LINE ITEMS.
All Users understand and agree that the Company, Affiliates, and Brokers may contact User and its personnel by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by User or User’s personnel in connection with Shipments, the Company, or the Platform. Users understands that it is not required to provide this consent as a condition of PURCHASING any property, goods, or Services on the Platform.
User acknowledges the Company’s need to be able to freely use any feedback about the Platform, the Services, the Company app’s or any related Platform or technologies (e.g., improvements, fixes, errors, bugs, etc.) provided by User and to own any improvements to the Platform, the Services, the Company app’s or any related Platform or technologies made by using or incorporating such feedback (collectively “Feedback”). Accordingly, User hereby assigns to the Company any rights User may have, including all intellectual property rights, in the Feedback and the Company may exercise its ownership rights to such Feedback and intellectual property rights without compensation, attribution or accounting. Without additional consideration, User agrees to perform all acts reasonably necessary to perfect such rights in the Company.
The Company may, in the Company’s sole discretion, permit Users from time to time to submit, upload, publish or otherwise make available to the Company through the Service or the Platform textual, audio, visual or other content and information, including load information, commentary and feedback, ratings and reviews (including of Carriers, Brokers, Shippers, Consignees, and facilities), initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by User remains User’s property. However, by providing User Content to the Company, User grants the Company a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from User, and without the requirement of payment to User or any other person or entity.
User represents and warrants that: (A) User either is the sole and exclusive owner of all User Content or User has all rights, licenses, consents and releases necessary to grant the Company the license to the User Content as set forth above; and (B) neither the User Content, nor User’s submission, uploading, publishing or otherwise making available of such User Content, nor the Company’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
User agrees to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by the Company in its sole discretion, whether or not such material may be protected by law. The Company may, but shall not be obligated to, review, monitor, or remove User Content, at the Company’s sole discretion and at any time and for any reason, without notice to User.
Platform and Shipments Tendered
The foregoing Agreement govern the provision of Services by Carriers related to Shipments brokered by a Platform registered Broker, or the Platform Algorithm, via the Company’s Platform or otherwise. Notwithstanding anything herein the contrary, this Platform and Service provisions section shall govern the relationship between the Company, Broker, and Carrier with respect to the use of the Platform, that enables third-party customers seeking to transport or manage freight to tender loads for Shipment directly to Carriers, via Shipper’s or Broker’s Platform.
User acknowledges and agrees that, with respect to the Platform and any Services (including any Services viewed by, tendered to, accepted by or transported by a Carrier or managed by a Platform registered Broker):
- (i) The Company is not acting as a property broker, motor carrier, or any other similar capacity. Take It Away Tom! is a software company providing a Platform that supports and facilitates algorithm services on behalf of the transportation industry.
- (ii) The Company is acting solely as a provider of the Platform to Users for applicable Services.
- (iii) The Company has no involvement in the transportation of any Shipment other than its capacity as provider of the Platform, and all matters related to the transportation of a Shipment (including payment for the freight transportation, any accessorial and any other charges owed to the Carrier, liability for cargo loss or damage, or any other losses or damages to or caused by the Carrier or any Shipper) shall be governed by the Terms of Use Agreement between all Parties of such Shipment.
- (iv) The Shipper or originating shipment Broker on the Platform for each Shipment is responsible for the authorization and selection of all Carriers (including, as applicable, Carrier) for the transportation of such Shipments, as well as any payment of freight charges due to Carrier for the transportation of such Shipments, and the Company has no involvement in or liability for any such carrier authorization, selection, or payment.
- (v) The Shipper or Broker of each Shipment may provide certain pricing and other information to the Company that the Company may transmit to the Carrier and other Broker via the Platform’s (including in a rate confirmation), and with respect to all such information, (A) The Company has relied on the Shipper and has not independently verified such information, (B) such information is transmitted by the Company for the Carrier’s and Brokers convenience only and (C) The Company shall have no liability for any errors or omissions in such information.
- (vi) The Company shall have no liability to any User or any of its directors, officers, employees, representatives or agents with respect to the Company, the Platform, or any Shipment.
- (vii) The Company owns all intellectual property rights in and to the Platform and Other Products, and any such rights not expressly granted hereby are reserved to Take It Away Tom!.
- (viii) Users are not permitted to use or reference in any manner the Company or its affiliates’ company names, logos, product and service names, trademarks or service marks or those of the Company or its affiliates’ without explicit written permission.
- (ix) Users shall be responsible for charging and remitting, to any tax authorities, or other governmental authorities, any taxes and fees including, but not limited to, sales taxes, VAT, excise taxes, gross receipts taxes, privilege taxes, transaction taxes and property taxes with respect to services provided to the Shipper. The Company will have no responsibility or liability for issuing tax-compliant invoices, receipts and any other document of a similar nature to Users in relation to services provided by Carriers to Shippers or Brokers on the Platform.
Shipper Requirements and RESPONSIBILITIES
Representations and Warranties
Shipper hereby represent and warrants that the:
- Shipper will not use the Service to ship hazardous materials without proper permits and authorizations;
- Shipper will not use the Service for trafficking of any item;
- Shipper owns the Shipment or has all necessary rights to ship the Shipment;
- Shipper agree that the Company will not be liable for loss, damage, theft, destruction, or delayed delivery of any cargo;
- Shipper is solely responsible for obtaining any first-party insurance to cover any anticipated losses of cargo;
- Shipper will not request pick-up and delivery dates and hours that will require a Carrier to violate hours of service regulations under applicable law;
- Shipper will openly and honestly note when accessorial and ancillary items are required; and
- Shipper will promptly pay for Services rendered from the Platform per this Agreement.
- Shipper will disclose of any hazardous conditions in regard to any aspect of a Shipment, whether it be location hazards or shipment hazards.
Insurance Requirements for facilities
You shall procure and maintain, at your sole cost and expense, with reputable and financially responsible insurance underwriters maintaining a rating of B+ or higher, acceptable to the Company, the following insurance coverages when applicable: (This is sometimes required for factories, Construction Sites, and other sites where pick-up or drop-off location-‘s that have hazard’s to the Carriers’ driver or their equipment.)
- (i) Commercial general liability insurance (“CGL Insurance”) covering the loading and unloading when applicable for Shipments and any other Services of Shipper under this Agreement in an amount not less than $1,000,000 per occurrence. Such insurance must also cover any contractual liability of Shipper to the Company under this Agreement.
- (ii) Statutory workers’ compensation insurance in such amount(s) and in such form(s) as required by Applicable Law.
- (iii) Employer’s liability insurance in an amount not less than $1,000,000 per person/per accident/per occupational disease.
- (iv) Automobile liability insurance (“Auto Insurance”) covering all owned, non-owned, and hired vehicles (including any trailers provided by Broker, Shipper, Carriers, or any other party) insuring accidental amount not less than $1,000,000 per occurrence for bodily injury or property damage, or such larger amount as required by Applicable Law.
- Any other insurance that may be required by the Company or any applicable federal, state or local laws, rules, regulations or ordinances.
All insurance policies of Users required by this Agreement must, as applicable, be primary and must waive subrogation and contribution against the Company. User represents and warrants that there are no exclusions or limitations under any such policies that would prevent coverage for any liability assumed by User under this Agreement. User will furnish to the Company written certificates obtained from the insurance carrier showing that such insurance has been procured, is properly maintained, and indicating the expiration date of the relevant policies. User will provide Company with written notice of cancellation or material modification of any of the foregoing policies at least thirty (30) days prior to such cancellation or modification. Upon the Company’s written request, User will provide the Company with copies of the foregoing insurance policies. All of the foregoing insurance policies must be procured from insurance companies rated at least B+ or higher by AM Best.
Cargo Description and Disclosures
Shipper shall disclose to the Company, Broker, and Carrier all information reasonably necessary for the Broker and Platform to arrange transportation in compliance with applicable regulatory, legal and industry standards. Shipper shall also be responsible and liable for providing accurate description of Shipments including without limitation commodity type, accessorial and ancillary items, dimensions and weight, and any special handling requirements and instructions.
Equipment
(When Shipper is providing equipment) Shipper warrant that Shipper shall perform all equipment services pursuant to this Agreement with equipment that is regularly maintained and is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations. Shipper will not supply equipment that has been used to transport hazardous wastes of any kind, including, solid, liquid, or hazardous, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. Shipper will furnish equipment for transporting cargo which is clean, dry, leak proof, free from harmful or offensive odor, sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 U.S.C § 342.
Shippers Cargo Securement Provision
When a trailer is pre-loaded and sealed prior to Carrier’s arrival at destination, and the applicable bill of lading bears a “shipper load and count”, “SLC” or similar designation, Shipper is solely responsible for ensuring that all equipment has been properly loaded, secured, blocked, and braced. Shipper acknowledge that the Company or the Broker will never be in possession of any shipment being transported in connection with use of the Platform, and that the Company or Broker will not be responsible or have any role in the securement of the Shipment for transportation.
Shipper Fees and Payment Terms
For each Shipment, Shipper will remit payment to TAFS on behalf of the Company the freight charges quoted to the User upon acceptance of the applicable Shipment on the Platform(“Carrier Fee”) by a registered Carrier, plus any additional charges the Carrier may incur related to the Shippers Shipment. Freight charges may include, but are not limited to, detention time which may be charged, by way of example, for time beyond 30 minutes at each location for trucks 26 feet or less in length and 120 minutes at each location for trucks over 26 feet in length, overnight storage due to Shipper not being available to load a Carrier or able to receive the Shipment from a Carrier, any differences between costs for the actual Shipment and the description of the Shipment created on the Platform. The Company may change pricing for the Services from the Platform (from time to time at its sole discretion) by updating the Site and Mobile App and without notice to the User. Shippers generally are required to provide advance notice of ancillary services for which they intend to be charged, such as lumper charges, specialized equipment needed for loading, unloading, blocking, bracing, marking or securement, “truck ordered not used” fees, extra stop charges, and driver assist charges. However, advance notice is not always possible or practical, and the Company may not be able to receive and communicate to the Shipper, the Carrier, or Broker for request approvals of additional charges before the services are rendered. In that event, you agree to pay the costs of any accessorial and/or ancillary services which the Company, the Broker, and/or Carrier determines are reasonable and necessary.
Shipper understand and agree that freight charges quoted to Shipper for a specific transport may increase or decrease at any time without notice unless or until accepted by a Carrier; and a Carrier formally accepting the Shipment parameters; and that any accepted or quoted Shipment charges shall not apply to any future shipments transportation request a Shippers might seek on the Platform, as the costs of services evolve over time and are subject to changing market conditions.
Unless otherwise agreed by the parties, payments are due before services are rendered, subject to standard interest charges at 12% annum for late payments on Credit Accounts.
When the Company receives full payment of a freight charge (including all surcharges and accessorial charges) for the Shipment, the Platform shall display a Payment Completion Screen and email you confirmation. This is your electronic receipt, and you should print or save it for your records. User warrants that they have the right to use any credit card(s), checks, or other payment means provided to the Company and used to initiate payment of any freight charge. All information you provide to the Company’s third-party payment processor or to the Company must be accurate, current and complete. Shippers agrees to immediately notify the Company of any change in the Shippers billing address or the credit card or bank account used for payment hereunder.
User agrees not to circumvent payments for scheduled or completed Shipments in any way. All payments shall be in United States dollars. Any amount that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is more, from the due date until paid. In the event the Company is unable to collect all charges from the Shipper due to insufficient funds, the Shipper Administrative Users shall be liable for all costs and expenses incurred by the Company in connection with collection of the freight charge, including costs and expenses of a third-party collection agency and attorneys’ fees. Shipment charges are non-refundable.
Rates and Payment
For each Shipment, Shipper will pay the Company the freight charge quoted to the Shipper upon acceptance of the applicable Shipment on the Platform(“Carrier Fee”), as well as additional amounts, if any, paid by the Company, Broker, or Carrier for additional services provided by Carrier with respect to the Shipment.
Fees
In consideration of the Company’s provision of the Platform, User shall pay to the Company all applicable charges (collectively, “Fees”) without offset on the terms set forth below, in the Platform, and for Services.
Additional Payment Terms
All Users agree to the following with respect to the Company, Platform, and Services: Shipper will pay to the Company the amount of any shipment price quote accepted by Carriers on the Platform or any other amounts otherwise agreed between the parties and, in addition, will pay to the Company the accessorial rates set forth below when any accessorial event occurs on a Shippers shipment; Shippers will accept the Company’s invoices via email or other electronic means; Shipper will be liable for any expenses the Company incurs in collecting past due payments; and Shipper will accept electronic versions of proofs of delivery and other shipping documents. Except when Shipper has provided credit account information in the Platform, Shipper will pay the Company all Fees by ACH within thirty days of the invoice date to TAFS, and Shipper will email remittance details for each shipment to the Company with each payment. If User has provided credit card information in the Platform, then User is electing to pay by credit card and all Fees will be charged to Shippers credit card on point of sale, unless the Shipper selects to use their Credit Account.
The accessorial rates are as follows for shipments arranged on the Platform from within the United States and its territories:
- Detention is charged at $50 USD per hour after two hours of waiting time (up to a maximum of $250) and charges will be rounded up to the nearest 15 minute increment;
- Layover is charged at $250 USD per day;
- Truck order not used (TONU) is charged at $250 + $3(per out of route mile) USD if the load is not cancelled at least 24 hours prior to pickup;
- Extra charges will apply to any unplanned route deviation, for charge amounts please email shipping@takeitawaytom.com;
- Driver assist rates are as follows: $75 USD for moving pallets and $75 USD for loading or unloading Platform; and
- Any other accessorial or similar charges (including late fees, trailer wash fees, TWIC escort fees, scale ticket costs, toll charges, pinwheeling costs, permit costs and lumper charges) that are incurred by the motor carrier or the Broker on the Shipper’s shipment will be charged to and paid by Shipper.
Affiliate Brokers Operating Authority, Requirements, and Compliance with Law
Affiliate Broker represents and warrants that it is legally qualified in accordance with all applicable federal, state, local, provincial, foreign, and international laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Laws”) to provide, as a Transportation Broker, the interstate, intrastate, interprovincial, interprovincial, cross-border and / or international Transportation Broker Services (“Services”) constituted by this Agreement.
The User Agrees to comply with all Applicable Laws in the performance of the Services and its obligations under this Agreement, including (a) the U.S. Federal Motor Carrier Safety Administration (“FMCSA”) and all rules and regulations promulgated thereunder; (b) Brokers engaged in interstate commerce are regulated by FMCSA and are subject to several Federal statutes and regulations, in particular 49 CFR §371. Brokers are required to register with FMCSA, maintain process agents to accept legal service, and establish and maintain appropriate coverage for financial liability. (c) In response to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) and a petition by the American Moving and Storage Association (AMSA), the FMCSA amended §371 and other regulations. These amendments specify requirements for brokers of household goods, addressing consumer protection, financial liability coverage, and business practices. Additionally, in the future FMCSA will assign U.S. Department of Transportation (USDOT) numbers, in addition to Motor Carrier (MC) numbers, to all brokers to better identify them.
User agrees to maintain at all times an “Excellent,” “Satisfactory,” “Satisfactory – unrated,” “Satisfactory – unaudited”, “Continue to Operate,” or an unrated safety rating as required under Applicable Laws. User further represents and warrants that it does not have an unsatisfactory, conditional, or unfit safety rating from the FMCSA or any other regulatory authority with jurisdiction over Users operations. If User (1) receives or is notified it may receive any such unsatisfactory, unfit or conditional safety rating, (2) fails to maintain the insurance Bond required by this Agreement, (3) is notified that any such insurance Bond may become ineffective, (4) is notified of any intervention, investigation, safety audit or compliance review initiated by or on behalf of FMSCA or any other relevant regulatory authority, or (5) is otherwise prohibited by Applicable Law from performing Services hereunder, the Broker will not transport any Shipments tendered to Carriers and will promptly notify the Company of such notification, failure or prohibition.
By Phone at 866-777-6349
The Broker warrants and agrees that (i) it has provided or will provide all notices and obtained (or will obtain) all rights, consents and permissions (collectively, “Consents”) necessary to provide the Company with the personally identifiable information of any Broker’s Representative, including any Dispatcher (as defined above), and provide to the Company; and (ii) it is in compliance, and will remain in compliance during the term of this Agreement, with all Applicable Laws relating to data protection, privacy, personal information, identity theft, data breach, consumer protection, and data security.
Documents due at registration
Upon registering with the Service, you shall provide Take It Away Tom!: (i) a copy of your FMCSA Operating Authority; (ii) a completed W-9 form; (iii) proof of insurance as described in the agreement; and (iv) proof of formation.
Affiliate Broker Formation Requirements
Affiliate Broker must meet the following corporate formation requirements to meet the relationship criteria provided by your state;
- Must have an LLC, or Corp.
- Must have and EIN (SOCIAL SECURITY NUMBERS WILL NOT BE ACCEPTED)
- Must have a USDOT number registered as a BROKER
- Must have a MC and, or FF, and, or Customs Brokers License
Affiliate Broker Insurance Requirements
Affiliate Broker (applies to the United States & Canada) must procure and maintain, at its sole cost and expense, the following when applicable:
Commercial general liability insurance (“CGL Insurance”) covering the structure where business is conducted under this Agreement in an amount not less than $1,000,000 per occurrence. Such insurance must also cover any contractual liability of Affiliate Broker to the Company under this Agreement.
Statutory workers’ compensation insurance in such amount(s) and in such form(s) as required by Applicable Law.
Employer’s liability insurance in an amount not less than $1,000,000 per person/per accident/per occupational disease.
The Federal Motor Carrier Safety Administration (FMCSA) requires freight brokers and freight forwarders to purchase a $75,000 surety bond before receiving a freight broker license. Freight broker bonds are also referred to as the BMC 84 bond or the ICC broker bond.
All insurance policies of Brokers required by this Agreement must, as applicable, be primary and must waive subrogation and contribution against the Company. Affiliate Broker represents and warrants that there are no exclusions or limitations under any such policies that would prevent coverage for any liability assumed by Affiliate Broker under this Agreement. Affiliate Broker will furnish to the Company written certificates obtained from the insurance company showing that such insurance has been procured, is properly maintained, and indicating the expiration date of the relevant policies. Affiliate Broker will provide the Company written notice of cancellation or material modification of any of the foregoing policies at least thirty (30) days prior to such cancellation or modification. In addition, Take It Away Tom! must be included or added as additional insureds on Affiliate Broker’s CGL Insurance and must be added as a loss payee on Insurance policy, in each case, as evidenced by an endorsement on the certificates of insurance. Upon the Company’s written request, Affiliate Broker will provide the Company with copies of the foregoing insurance policies. All of the foregoing insurance policies must be procured from insurance companies rated at least B+ or higher by AM Best.
DOT Safety Rating
The Affiliate Broker warrants that the Brokerages current safety rating issued by FMCSA is not “Unsatisfactory,” and that you are not otherwise subject to an out of service order or otherwise prohibited from providing service in accordance with all applicable laws, rules and regulations. In the event the Broker is issued a safety rating of less than “Satisfactory” at any time during the term of this Agreement, the Broker shall notify the Company immediately in the manner prescribed in the Notices provision contained hereinbelow. The Company shall have the right to terminate this Agreement immediately should the Broker fail to comply with these “obligations.”
Performance of services by affiliate broker
The Affiliate Broker is solely responsible for controlling the method, manner, and means of accomplishing the performance of Services on the Platform. Brokers will be assigned Shippers and Carriers based on the User selection(Only other users can assign a Broker.), or by being a Broker and the Affiliate associated with the new User (this is when you refer the new Shipper or Carrier, they will automatically be assigned to your Brokerage Account).
All Shipments arranged on Take It Away Tom!’s Platforms and accepted by Carrier must be transported pursuant to Carrier’s operating authority even if the Drivers assigned to the Shipments have their own separate operating authorities from the FMCSA. The Broker specifically agrees and understands shipments tendered to Carriers on the Platform will be transported on Equipment operated only under the authority of assigned Carrier and that sub-contracting, re-brokering, or in any other arranged forms for the Shipment to be transported by an unauthorized third party is not allowed. If a Broker openly knows of a Carriers violations of the foregoing prohibition, in addition to any other rights and remedies available to the Company, the Company may, in its sole discretion, pay the underlying third-party carrier directly, and such payment will relieve the Company of any and all payment obligations to the assigned Carrier and the Broker with respect to such Shipment.
Brokers will Arrange all Shipments without unreasonable delay and will promptly communicate to the Company and all impacted Parties/Users of any event or circumstance that may cause delays in Shipments acceptance, pick-up, transit, or delivery. This Agreement does not grant User an exclusive right to perform any Services for any Carrier or any Shipper. The Affiliate Broker will not actively engage in the service of transporting Shipments as a Carrier.
In the performance of Services, the Broker will be solely responsible for the acts and omissions of each of its employees, agents, representatives, contractors (including independent contractors and subcontractors) and any other service providers engaged by the User (including its Representatives). In the event a Carrier designates to Affiliate Broker certain Carrier Representatives who are authorized to accept Shipments (or make other business decisions) on behalf of a Carrier on any of the Take It Away Tom! Platforms, (a) Broker agrees that the Carrier may rely upon the acceptance by any such Broker Representative of a Shipment made available to Carrier on any of the Take It Away Tom! Platforms as creating a legally binding obligation of the Broker to the Carrier and Shipper hereunder with respect to such Shipments, (b) Broker agrees to notify Shipper or Carrier immediately of any changes to (including removals from) the list of Brokers Representatives so designated and (c) Broker shall be solely responsible for any failure to accurately and timely notify the Company, Carrier, or Shipper of any such changes to (including removals from) the list of designated Brokers Representatives. Take It Away Tom! also gives the Affiliate Broker Admin the ability to remove these accounts as well. It is solely the Users responsibility to maintain their employee account from abuse. The User agrees to maintain all liability from previous User’s Representatives given access to Take It Away Tom! Platforms.
User must utilize only competent and able personnel who are legally licensed in accordance with Applicable Laws to perform the Services on the Platform. User will be solely responsible for ensuring, and will ensure, at User’s cost and expense, that such User’s Representatives are fully qualified to perform Services hereunder. User will also ensure that any shipment assigned to a Driver provided the Broker is the assigned Dispatcher for the Driver/Carrier providing Services, has sufficient hours available to complete scheduled deliveries in accordance with, and without violation of, applicable hours-of-service regulations and other Applicable Laws. CARRIER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER SCHEDULED SHIPMENTS CAN BE COMPLETED ON TIME WITHOUT VIOLATION OF APPLICABLE LAWS.
The relationship between all Parties is solely as independent business enterprises, each of which operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This Agreement is not an employment agreement. User confirms the existence and nature of such contractual relationship each time a User’s Representative accesses the Take It Away Tom! Platforms. User assumes full responsibility for all taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension, and social security insurance) and other financial obligations due to or otherwise involving User’s Representatives (including compensation of its employees) arising out of the Services. Neither the Company, Carrier, nor any Shipper is an agent of Affiliate Broker and Affiliate Broker is not an agent of the Company, Carrier, or any Shipper. This Agreement does not create a joint venture, joint enterprise or partnership between the Company, Affiliate Brokers, Shippers, and/or Carriers.
Affiliate Broker will furnish all equipment necessary or required for the performance of the Services they provide. The Broker Understands and agrees this is a Business to Business relationship as independent parties. The Company is a Software Company that provides a Transportation Brokerage Platform. The Broker is the Transportation Broker using the Platform. The Platform and the Company are licensed transportation brokers, that is out of compliance with the law. The Company at no time represents itself or act’s as a transportation Broker, Carrier, or Shipper. All Users understand that any action provided by the Platform, was done autonomously and based on the algorithms’ code. At no time will the Company assign Shipments, the Platform can assign Shipments, this action by the platform is out of the company direct supervision and/or control. TAKE IT AWAY TOM! DOES NOT REPRESENT IT SELF AS A TRANSPORATION BROKER, THE COMPANY DEVELOPS, MAINTAINS, AND PROVIDES THE PLATFORM.
If a User elects to provide access to any of the Take It Away Tom! Platforms to any User Representative, any directions, pickup or delivery instructions or other information provided through such Take It Away Tom! Platform shall be deemed to be provided by the User to their Representatives. Any navigational directions that the Company offers to Carrier or its Drivers are offered as a convenience only, and Carriers and their Drivers will have no obligation to follow such navigational directions. Notwithstanding any communications or other information transmitted to or from a Driver on any of the Take It Away Tom! Platforms, User agrees that it has full control of its User’s Representatives in the performance of Services.
Brokers also will provide technical support and troubleshooting for their assigned users. The Company will assist in Technical support related issues where the assigned Broker has extinguished all available options. It is the Brokers responsibility to understand the functionality of the Platform they are using to provide and sell their services. Brokers can provide services outside of the platform such as training, consulting, and User assistance and charge for these services independently. If you are wanting to sell a product or service associated with the Platform, the Company does not warrant or guaranty such activities of the Broker participating in such activities, and by doing such activity does not constitute a joint venture or partnership.
The Company does not govern additional services provided by Brokers or other Users. The Company does how ever provide letters of endorsements for products and services providing support for the Platform. The Company holds no liability to Broker for canceling, discontinuing, or suspending the Platform, Services, or other Technologies they built their business around. The Company maintains all ownership rights to the Platform, Services on the Platform, and other Technologies associated with the Company, Platform, Services on the Platform, and other Technologies associated with the Platform.
Responsibilities of the Affiliate Brokers
Affiliate Broker shall be solely responsible for exercising due diligence in accepting Shippers and Carriers to the Platform, and selecting Carriers for the performance of this Agreement when a Shipper or Carrier options in-to services with Brokers on the Platform, which includes, but is not limited to:
Affiliate Broker is directly responsible for:
- being in compliance with all federal, state, and local laws, statutes, and regulations that apply to their Transportation Brokerage.
- any agreements entered under the Affiliate Brokers Company such as land lease, mortgage, phone, utilities, company credit accounts, etc. (the Affiliate Broker understands at no time does Take It Away Tom! give consent to any Affiliate Broker to enter any agreement on behalf of Take It Away Tom!.)
- abiding by and upholding all corporate policies and procedures.
- maintaining a workplace free of unlawful harassment and discrimination in compliance with federal law and any applicable state and city ordinances.
- maintain all insurance requirements as defined in this Agreement as applicable.
- vetting and processing all of their designated Carriers and Shippers.
- insuring the compliance of this agreement with all Shippers and Carriers in their Brokerage, as well as reporting any violations.
- processing and handling of all documents between Shippers, Carriers, and the Platform that are required inside and outside of the Platform.
- processing all Shippers payments through the Company Platform on assignment of Shipments to TAFS.
- processing all documents between the Shipper, Carrier, Receiver, and respective Factoring Companies.
- processing all documents when received. This is a User performance requirement.
- identifying potential con-artists and reporting them to the authorities with as much information gathered as possible.
- identifying and acting accordingly with any User suspected of misuse, fraud, or violations under this User Agreement. Franchised Brokers have the ability and are responsible for Activating and Suspending Shipper and Carrier User accounts associated with their Brokerage. Shippers and Carriers may petition Suspensions on their accounts. Mis-use of this feature will cause the permanent ban and suspension of the Affiliate Broker and the Affiliate Brokers account.
- Providing Technical Support and troubleshooting methods for Shippers and Carriers on the Platform under your User Account or in your Region.
- BE RESPECTFUL AND POLITE TO ALL USERS. COMPLAINTS AGAINST BROKERS CAN RESULT AND ARE NOT LIMITED TO A PERMANENT LIFETIME BAN AND SUSPENSION OF THEIR USER ACCOUNT. THE COMPANY DOES RESERVE THE RIGHT TO PERSUE USERS FOR DAMAGES ASSOCIATED WITH MISCONDUCT THAT HARMS THE PLATFORM. THE COMPANY WILL TAKE CORRECTIVE ACTION FOR MISCONDUCT IMMEDIATELY AS IT CAN HAVE AN ADVERSE IMPACT ON THE BRAND.
Additional Responsibilities of Affiliate Broker:
to the Company regarding Shippers,
- Verifying the Shippers Validity in accordance with this Terms of Use Agreement.
- Verifying all shipper payment processing information.
- Verifying the creator of the Shippers account is authorized to create the account.
- Verifying the Shipping company has VALID REGISTERED CONTACT INFORMATION (PHONE NUMBER, ADDRESS, BANKING INFORMATION, ETC.).
- Verifying the Shippers Accounts completeness. (ALL SIGN-UP FIELDS MUST BE COMPLETED TO ACCESS THE PORTAL, THIS IS THE BROKERS RESPONSABILITY TO VERIFY. The Platform will do it automatically when all fields are entered by the Shipper. This does not negate the responsibility of the Broker to verify the legitimacy of the Shipper.)
- Identify and verify the Direct Representative of the Company with valid contact information obtained from the government registries.
- Insure that a guarantor for the company is properly established. (Factoring, pre-paid lines of credit, etc..)
to the Company regarding Carriers,
- To verify all uploaded documents provided by Carriers assigned to your region before activating their user account.
- Documents to be uploaded for Verification of Carrier by Broker before account is made active: (Please refer to Carrier’s Operating Authority. Requirements, and Compliance With Law section for the Company requirements for Carriers.)
- Corporate Formation Documents:
- No DBA’s are allowed
- Supporting Sec of State LLC Filing
- Supporting Sec of State Corp. Filing
- EIN on an acceptable Tax Document
- Current w-9 or w-8
- Active USDOT#
- Active MC#
- Active State Authority#
- Verify the uploaded copy of the Carriers insurances policies with Take It Away Tom! as a holder and payee on the Insurance Policies per the Carrier’s Operating Authority, Requirements, and Compliance With Law section herein this Agreement.
- Corporate Formation Documents:
- Vetting of the Carriers transportation rating meets the Take It Away Tom! standard per this Terms of Use Agreement and in accordance with the Carriers Section of this Terms of Use Agreement.
- Vetting of the Insurance Policies of the Carriers to insure they meet our minimum requirements, and the individual requirements of Shippers for Carriers.
- Documents to be uploaded for Verification of Carrier by Broker before account is made active: (Please refer to Carrier’s Operating Authority. Requirements, and Compliance With Law section for the Company requirements for Carriers.)
- Handle all documents between the Shipper and the Carrier.
- Affiliate Broker shall contractually prohibit its selected Carrier from re-broker, sub-broker, subcontracting, re-assign, interline, or warehousing any shipments hereunder without the prior written consent of the Company.
to the Shipper and Carrier,
- Verify all Shipments Requests submitted by your Shippers are accurate.
- Verify that all accessorial and ancillary items have been properly noted on the Shipment request. (The Designated Broker is 100% responsible for confirming the accuracy of Shipment requests and will bear the sole responsibility, liability, and cost’s for accessorial and ancillary items not properly mentioned, quoted, and billed for on assignment of the Shipment. Accessorial and ancillary items will come out of the Brokers payment from the Company, to pay the Carrier if not paid for by the Shipper on assignment of the Shipment. The Company does not guaranty a Shipper will pay accessorial and ancillary items when not collected at the time of billing. The Broker will be 100% responsible for all liability and cost’s associated with collecting payment from the Shipper for these charges when the Broker fails in due-diligence.)
- Report any mis-use regarding accessorial and ancillary charges. (If a Shipper does not report these items willfully and, repeatedly and willfully refuses to properly disclose the nature of Shipments honestly. This action is a willful violation of this User Agreement, the Shippers account will be suspended and the Company may pursue damages on your behalf. A Broker may pursue damages against a Shipper for non-payment at their own expense at any time applicable by law. This is not the obligation of the Company. It is the Brokers primary responsibility to insure the validity of all Users and the accuracy of all documents and Shipment request submitted to the Platform. At no time does the Company agree to adopt any liability or cost associated with a Brokers failure in the performance of due- diligence.)
- Disclose to Shippers and Carriers when problems arise from Shipment requests or their accounts.
- Resubmit Shipment requests and process refunds when necessary.
- Verify the Carrier accepting the Shipment is not a Broker and that there is no intentions from the accepting Carrier to re-broker or contract the Shipment. (The Carrier must be the direct supplier of the Services performed for the accepted Shipment. The Company make no exemptions to this prevision period.)
- Verify when needed ownership and legality of Shipment items for federal, state, and local compliance.
- Verify the Carrier accepting the load is with in federal, state, and local compliance regarding the transportation of that Shipment.
- Verifying the Carrier’s operating authority (state and/or federal).
- Obtaining proof of the carrier’s insurance coverage, with coverage not less than$1,000,000.00 for General Liability, $1,000,000.00 Auto Liability are current; and the Carriers $100,000.00 cargo policy has the Shipper and co-signee as the payee for the freight.
- Verifying the carrier does not have an “Unsatisfactory” or “Conditional” safety rating with the FMCSA, executing a written contract with carriers, which includes carriers representation of compliance with all applicable state and federal safety regulations, and for intermodal shipments, contracting only with motor carriers who have executed, and represent that they are in compliance with the terms of a current Uniform Intermodal Interchange Agreement (UIIA).
- If Dispatching for Carrier, Affiliate Broker is responsible for knowing the drivers log hours for assigned drivers. All safety rules and regulations under the USDOT and the FMCSA apply, before obligating the Carrier and their Driver.
- Verify the Carrier has accepted the rates for the shipment and that the supporting documents for rate confirmation have been uploaded to the Platform.
- Assign and dispatch the Carrier when permitted.
- Verify the funds for the Shipment request have been billed and collected before the Carrier is Dispatched.
- Verify that all permits have been pulled for the transportation of that Shipment if required.
- Insure the Carrier does not load the Shipment, when accessorial and ancillary charges have not been paid or are pending.
- Verify the Bill of Lading is correct and reflects all information accurately for the associated Shipment request.
- Assist Carriers on a successful delivery of the Shipment by providing assistance with payment advance information needed for the Factoring Company of the Carrier.
- Immediately notify all Parties in the event of delays, accidents, damages, loss, theft, claims, etc.
- Assist the Shipper and Carrier with any claims by providing information only.
- Verify the Proof of delivery provided by the Carrier.
- Verify the acceptance of the Shipment to the receiver.
- Insure the Shipper and the Carrier have all required documents for the completed Shipment request.
- Register the Shipment as Completed on the Platform when all supporting completion documents have been uploaded and verified.
Affiliate Broker is Prohibited from
Affiliate Broker is Prohibited from:
- misusing the activation and suspension functions available to Brokers in their Super Admin Account.
- actively engaging in the transportation of freight, cargo, or good as a Carrier.
- using the Platform as a Shipper in order to re-broker, co-broker, sub-broker, or double broker any Shipment from or published for service on the Company Platform.
- using any content provided by the Company outside of its intended use.
- taking information out of the Platform without written authorization from associated Parties.
- engaging in any business as the Company.
- entering any agreement on behalf of the Company.
- entering any agreement as Take It Away Tom!.
- contractually obligating the Company to anything. The Company does not permit any User warrant or guaranty authority on behalf of the Company.
- accepting any payments on behalf of Take It Away Tom! outside of the Platform.
Affiliate Brokers Fee and Payment TERMS
Subject to the terms and conditions hereof, for each Shipment delivered by Carrier, the Company will pay to the Broker (and not any other Broker or any other of the Broker’s Representatives) or to a factoring company on behalf of the Broker (if so instructed in writing by the Broker) the rates and charges set forth in a rate confirmation provided by the Company to the Broker and the Carrier electronically or otherwise in respect of such Shipment (the “Rate Confirmation”). The Rate Confirmation constitutes an integral part of this Agreement and may contain additional terms, all of which are legally binding on the Broker. the Broker hereby agrees that any Shipment that is accepted by any of its assigned Carriers on any of the Platforms or otherwise will be a Shipment and transported by an assigned Carrier will be subject in all respects to this Agreement at the rates and charges, and subject to the other terms set forth in the Rate Confirmation.
The Broker will verify the Carrier evidence of each Shipment by a bill of lading that complies with 49 C.F.R. § 373.101 and names Carrier as the transporting motor carrier. Except for information required under 49 C.F.R. § 373.101, in no event will Carrier’s tariff, terms and conditions, service guide, credit application, bill of lading (including any deemed terms and conditions under Applicable Law), or similar shipping document apply to the Platform. Broker will verify all information is uploaded to the Company standards on the Platform for the Payment Process to commence.
Upon delivery of each Shipment, the Broker must obtain a proof of delivery that serves as a receipt showing the kind and quantity of product delivered to the consignee/receiver, and the Broker will cause the Carrier, who will cause the consignee/receiver to sign such receipt. The bill of lading is intended to act as a receipt only. the Broker, Carrier, and Shipper will notify and confirm to the Company immediately in writing of any exception made on the bill of lading or delivery receipt.
The Broker will cause the Carrier to provide the Company/Platform with a complete, legible and otherwise acceptable copy of the bill of lading or other proof of delivery within twenty-four (24) hours of the delivery from each Shipment (the Carrier has access to the Platforms and agrees to upload such proof of delivery to the Platform). Broker will cause the the Carrier and must submit any supporting documents requested by the Company promptly and, in any case, within twenty-four (24) hours of the Company’s request.
The Broker must bring any valid suit related to unpaid Shipment Commissions or undercharges for the Brokers Shipments within eighteen (18) months of the delivery date of such Shipment, and the Broker hereby irrevocably waives its right to sue or otherwise seek payment or reimbursement for any such Shipment after such deadline. Any claims in that time shall be resolved through arbitration. (Arbitration Clause)
As required by the U.S. Moving Ahead for Progress in the 21st Century Act (“MAP-21”), the Broker (a) confirms that it has entered into this Agreement as a property broker and (b) acknowledges and agrees that FMCSA regulations prohibit Broker from representing its operations as being those of a motor carrier. As a property broker, Broker is in the business of identifying and contracting with motor carriers, such as Carrier, authorized to transport the Shipment from Shippers. If a Broker or the Company is named as a “carrier” on any applicable bill of lading, such misstatement will not affect Broker’s or Company’s status as a property broker.
The Company will pay the Broker within thirty (30) days of the Company’s receipt of a signed bill of lading or other proof of delivery and any other related documentation requested by the Company thru the Platform. Subject to the preceding sentence, the Broker agrees that the Company may establish payment practices pursuant to which the Company endeavors to make faster payments for certain circumstances including (1) payments made directly from the Company to the Broker (rather than from the Company to a factoring company or other third-party recipient on behalf of the Broker) and/or (2) payments made to Broker that are assigned to applicable Shipment on an Platform and/or have used the Platform to upload a proof of delivery or as otherwise requested by the Company. The Company’s practice, program, or periodic election to make payments earlier than as required by the first sentence of this paragraph may be modified or cancelled by the Company at any time without notice in the Company’s sole discretion.
the Broker agrees that the Company may withhold and offset from any amounts otherwise payable to the Broker or any of its affiliates any amount (i) that the Broker or any of its affiliates owes or may owe to the Company, Carrier, Shipper, a consignor, consignee or receiver of any Shipment, or an affiliate of any of the foregoing, or (ii) that is subject to a validly issued lien. the Broker (and any third-party recipient of payments on behalf of Carrier) must accept all payments in respect of Shipments from the Company via bank wire transfer (ACH). The Company will not provide payment for Services provided on the Platform any other way, unless by money order or check. Money orders and Checks are reserved as a form of final payment or reimbursements from offsets, underpayments, from overpayments, or any payment made by the Company arising from a dispute.
The Broker agrees that (A) as between Broker and the Company, the Company shall have the exclusive right to handle the billing of Shipment charges to each Shipper in respect of Services, and (B) as between Broker and each Carrier, the Company is solely responsible for paying Carrier’s freight charges for Services. the Broker will not seek payment from any Shipper, Carrier, Affiliate, or any consignor, consignee or receiver for any Shipment. The Broker hereby irrevocably waives any claims the Broker may have against any Carrier, Shipper, or any consignor, consignee or receiver of any Shipment, or any third-party payer in respect of any Shipment, to the extent related to the payment of the Brokers commissions for Shipments or payment for Services provided by the Carrier.
The Broker hereby waives and releases any liens or other claims of any nature that the Broker might otherwise have over any Shipment from any Shipper in the care, custody or control of an assigned Shipment. In the event a Carrier refuses to deliver are Shipment in their custody, the Broker will cause the Carrier to comply with reference to the Carriers prevision for refusal to deliver. In the event a Carrier does not deliver a Shipment from refusal, the Company will not release any funds to any party in relation to Services rendered, as the Services were not rendered. The Broker will not be compensated until the issue is resolved and maybe equally liable to the Shipper as the Carrier for lost, damaged, or stolen Shipments.
The Broker will charge the Company sales tax, value added tax, goods and services tax, or similar taxes (collectively “Transaction Taxes”) that are owed by the Company solely as a result of the Services provided by the Broker to the Company and which are required or permitted to be collected from Broker by the Company under Applicable Laws. the Broker will provide valid tax invoices (or equivalent information as requested by the Company) to the Company, consistent with the requirements of the relevant jurisdiction.
Upon request, the Broker shall provide the Company with a validly executed U.S. Internal Revenue Service form to establish its U.S. or non-U.S. status or any other necessary tax documentation. Where any taxation authority imposes any tax in connection with the payment for Services by the Company or Affiliate to the Broker and requires the Company to withhold such tax (“Withholding Tax”), the Company may deduct such Withholding Tax from the payment to the Broker (including amounts that the Company reasonably determines were required to have been withheld out of previous payments, but were erroneously not withheld) and remit such Withholding Tax to the relevant taxing authority. In the event a reduced Withholding Tax rate may apply on payments to the Broker, the Broker shall provide to the Company, before the relevant payment is to be made, all documentation necessary to demonstrate that the Broker is qualified for the reduced rate of Withholding Tax.
Carrier’s Operating Authority, Requirements, and Compliance with Law
Carrier represents and warrants that it is legally qualified in accordance with all applicable federal, state, local, provincial, foreign, and international laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Laws”) to provide, as a motor carrier, the interstate, intrastate, interprovincial, interprovincial, cross-border and / or international motor carrier transportation services (“Services” or “Shipments”) contemplated by this Agreement.
Carrier agrees to comply with all Applicable Laws in the performance of the Services and its obligations under this Agreement, including (a) the U.S. Federal Motor Carrier Safety Administration (“FMCSA”) and all rules and regulations promulgated thereunder; (b) Applicable Laws relating to the transportation of food grade products, including the U.S. Food Safety Modernization Act (21 U.S.C. § 2201 et seq.), the U.S. Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341 et seq.), the U.S. Sanitary Food Transportation Act (49 U.S.C. § 5701 et seq.), and the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900 et seq.); and (c) Applicable Laws relating to air quality and the environment.
Carrier shall maintain at all times an “Excellent,” “Satisfactory,” “Satisfactory – unrated,” “Satisfactory – unaudited”, “Continue to Operate,” or an unrated safety rating as required under Applicable Laws. Carrier further represents and warrants that it does not have an unsatisfactory, conditional, or unfit safety rating from the FMCSA or any other regulatory authority with jurisdiction over Carrier’s operations. If Carrier (1) receives or is notified it may receive any such unsatisfactory, unfit or conditional safety rating, (2) fails to maintain the insurance required by this Agreement, (3) is notified that any such insurance may become ineffective, (4) is notified of any intervention, investigation, safety audit or compliance review initiated by or on behalf of FMSCA or any other relevant regulatory authority, or (5) is otherwise prohibited by Applicable Law from performing Services hereunder, Carrier will not transport any Shipments tendered to Carrier and will promptly notify Take It Away Tom! of such notification, failure or prohibition.
By Phone at 866-777-6349
Carrier represents, warrants and agrees that with respect to any operations performed, and any equipment operated, in California hereunder, (i) such Services will be performed in accordance with the applicable regulations of the California Air Resources Board (“CARB”), including the Truck and Bus Regulation at 13 C.C.R. § 2025, the Drayage Truck Regulation at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et seq., and the Tractor Trailer Greenhouse Gas regulation at 17 C.C.R. § 95300 et seq.; (ii) Carrier has adopted policies and procedures to ensure compliance with such CARB regulations, as they may be revised, adopted, and amended from time to time; and (iii) Carrier shall only dispatch and operate compliant vehicles (including vehicles compliant with TRUs) and shall maintain shipment-specific records evidencing such compliance, which records shall be provided to the Company, Broker, or Shipper upon request.
Carrier further represents, warrants and agrees that (A) it has provided or will provide all notices and obtained or will obtain all rights, consents and permissions (collectively, “Consents”) necessary to provide the Company, Broker, and Shippers with the personally identifiable information of any Carrier Representative, including any Driver (as defined below), provided on the Platform by Carrier; and (B) it is in compliance, and will remain in compliance during the term of this Agreement, with all Applicable Laws relating to data protection, privacy, personal information, identity theft, data breach, consumer protection, and data security.
Documents due at registration
Upon registering with the Service, you shall provide Take It Away Tom!: (a) a copy of your FMCSA Operating Authority; (b) a completed W-9 form; (c) Proof of formation; and (d) proof of insurance as described in the agreement.
Carriers Formation Requirements
Carrier must meet the following corporate formation requirements to meet the relationship criteria provided by your state;
- Must have an LLC, or Corp.
- Must have a EIN (SOCIAL SECURITY NUMBERS WILL NOT BE ACCEPTED)
- Must have a USDOT number registered as a Carrier
- Must have a MC
Carrier Insurance Requirements
Carrier shall procure and maintain, at their sole cost and expense, with reputable and financially responsible insurance underwriters maintaining a rating of B+ or higher, acceptable to the Company, the following insurance coverages:
- (i) Commercial general liability insurance (“CGL Insurance”) covering the transportation of Shipments and any other Services of Carrier under this Agreement in an amount not less than $1,000,000 per occurrence. Such insurance must also cover any contractual liability of Carrier to Take It Away Tom! under this Agreement.
- (ii) Statutory workers’ compensation insurance in such amount(s) and in such form(s) as required by Applicable Law.
- (iii) Employer’s liability insurance in an amount not less than $1,000,000 per person/per accident/per occupational disease.
- (iv) Automobile liability insurance (“Auto Insurance”) covering all owned, non-owned, and hired vehicles (including any trailers provided by the Company, Broker, Shipper, or any other party) insuring Carrier in an amount not less than $1,000,000 per occurrence for bodily injury or property damage, or such larger amount as required by Applicable Law.
- (v) All-risk broad form motor truck cargo legal liability insurance (“Cargo Insurance”) in an amount not less than $100,000 per occurrence. Such insurance must have no exclusions or restrictions that would foreseeably preclude coverage relating to cargo claims, including exclusions for unattended or unattached trailers, theft, commodities transported under this Agreement, refrigerator breakdown or lack of refrigerator fuel.
- Any other insurance that may be required by the Company or any applicable federal, state or local laws, rules, regulations or ordinances.
Carrier (if within Canada) must procure and maintain the insurance required by this Agreement, except that the coverage limits must be no less than the following: (i) Auto Insurance, $2,000,000 (CAD); (ii) CGL Insurance, $2,000,000 (CAD); and (iii) Cargo Insurance, $150,000 (CAD).
All insurance policies of Carriers required by this Agreement must, as applicable, be primary and must waive subrogation and contribution against the Company, Broker, and Shipper. Carrier represents and warrants that there are no exclusions or limitations under any such policies that would prevent coverage for any liability assumed by Carrier under this Agreement. Carrier will furnish to the Company written certificates obtained from the insurance carrier showing that such insurance has been procured, is properly maintained, and indicating the expiration date of the relevant policies. Carrier will provide the Company and their Broker written notice of cancellation or material modification of any of the foregoing policies at least thirty (30) days prior to such cancellation or modification. In addition, the Company and the Platforms designated Broker must be included or added as additional insureds on Carrier’s CGL Insurance and Auto Insurance policies and Shipper must be added as a loss payee on Carrier’s Cargo Insurance policy, in each case, as evidenced by an endorsement on the certificates of insurance. Upon the Company’s or Broker’s written request, Carrier will provide the Company or Broker with copies of the foregoing insurance policies. All of the foregoing insurance policies must be procured from insurance companies rated at least A-VII or better by AM Best.
DOT Safety Rating
Carriers warrant that their current safety rating issued by FMCSA is not “Unsatisfactory,” and that you are not otherwise subject to an out of service order or otherwise prohibited from providing service in accordance with all applicable laws, rules and regulations. In the event you are issued a safety rating of less than “Satisfactory” at any time during the term of this Agreement, you shall notify Take It Away Tom! and their Platform designated Broker immediately in the manner prescribed in the Notices provision contained hereinbelow. Take It Away Tom! shall have the right to terminate this Agreement immediately should Carrier fail to comply with these obligations.”
Compliance With Laws
Carrier acknowledges that it is authorized to provide transportation services of any Shipments accepted, requested, or obtained through the Platform as a for-hire motor carrier in accordance with any and all applicable laws, rules and regulations. Carrier represent and warrant that the Carrier is licensed by FMCSA as a for-hire motor carrier of property in interstate commerce pursuant to 49 USC §13902. With respect to the transportation services provided under this Agreement, including any drivers the Carrier may use, the Carrier shall comply with all applicable federal, state and local laws, rules, regulations and ordinances. Carrier shall defend, indemnify and hold the Company, Brokers, and Shippers harmless from and against any and all fines, penalties, judgments, liabilities, expenses and costs of any nature resulting from your failure to comply with all such laws, rules, regulations and ordinances.
The foregoing obligations include, but are not limited to, compliance with all applicable laws, rules and regulations applicable to: transportation of Hazardous Materials (including the licensing and training of Haz-Mat qualified drivers), as defined in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances and alcohol testing, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, including without limitation the Food Safety Modernization Act, the Sanitary Food Transportation Act of 2005 and the FDA’s Final Rule pertaining to Sanitary Transportation of Human and Animal Food, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of drivers; all applicable insurance laws and regulations including, but not limited to, workers’ compensation.
Equipment
Carrier warrant that the Carriers shall perform all transportation services pursuant to this Agreement with equipment that is regularly maintained and is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations. Carriers will not supply equipment that has been used to transport hazardous wastes of any kind, including, solid, liquid, or hazardous, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. Carriers will furnish equipment for transporting Shipments which is clean, dry, leak proof, free from harmful or offensive odor, sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 U.S.C § 342.
Additional Obligations
Carrier will provide exclusive use of equipment being used to handle any Shipment and will not allow the cargo of any third party to be transported on Carriers equipment while such equipment is being used to haul any Shipment under this Agreement. At no time will Carrier allow any trailing equipment being used to transport any Shipment become unattached from the power unit being used to transport such cargo.
Carrier Shipment Securement prevision
Unless a trailer is pre-loaded and sealed prior to Carrier’s arrival at destination, and the applicable bill of lading bears a “shipper load and count”, “SLC” or similar designation, Carrier is solely responsible for ensuring that all equipment has been properly loaded, secured, blocked and braced. Carrier acknowledge that the Company will never be in possession of any shipment being transported in connection with use of the Platform, and that the Company will not be responsible or have any role in the securement of cargo for transportation.
California Air Resource Board Regulations
If User will transport cargo to, from or through California, User warrants that that the Users’ are compliant with any and all applicable California Air Resource Board regulations and requirements. User shall notify Take It Away Tom! through the Platform within three (3) days of any change in your compliance status.
Performance of Services by Carrier
The Carrier is solely responsible for controlling the method, manner, and means of accomplishing the performance of Services from the Platform. The Carrier and its Drivers are responsible for transporting Shipments in a timely manner without damage in transit, as well as determining the appropriate route for transportation. (“Driver” means, collectively, the employees of Carrier, any contractors of Carrier (including owner-operators under contract with Carrier and any employees of any such owner-operator) and any other service provider or other personnel of Carrier, in each case, who is assigned to operate any motor vehicle transporting any Shipment on behalf of Carrier.)
All Shipments arranged by Take It Away Tom!’s Platforms and accepted by Carrier must be transported pursuant to Carrier’s operating authority even if the Drivers assigned to the Shipments have their own separate operating authorities from the FMCSA. Carrier specifically agrees that all Shipments tenders to Carrier will be transported on Equipment operated only under the authority of Carrier and that Carrier will not in any manner sub-contract, broker, or in any other form arrange for the Shipment to be transported by a third party without the prior written consent of all involved Parties. If Carrier violates the foregoing prohibition, in addition to any other rights and remedies available to the Company, the Company may, in its sole discretion, pay the underlying third-party carrier directly, and such payment will relieve the Company of any and all payment obligations to Carrier with respect to such Shipment. Carrier will transport all Shipments without unreasonable delay and will promptly communicate to the Platform and the designated Broker any event or circumstance that may cause delay in transit. This Agreement does not grant Carrier an exclusive right to perform any Services for a Broker or any Shipper. Upon request by the Company or designated Broker, Carrier will execute any necessary Uniform Intermodal Interchange and Facilities Access Agreement (“UIIA”) and Shipper-specific UIIA addendum.
In the performance of Services, Carrier will be solely responsible for the acts and omissions of each of its employees, agents, representatives, contractors (including independent contractors and subcontractors) and any other service providers engaged by Carrier (including its Drivers). In the event a Carrier designates to a Broker certain Carrier Representatives who are authorized to accept Shipments (or make other business decisions) on behalf of the Carrier on any of the Take It Away Tom! Platforms, (a) Carrier agrees that the Broker may rely upon the acceptance by any such Carrier Representative of a Shipment made available to Carrier on any of the Take It Away Tom! Platforms as creating a legally binding obligation for the Carrier hereunder with respect to such Shipment, (b) Carrier agrees to notify the Company and the designated Broker immediately of any changes to (including removals from) the list of Carrier Representatives so designated and (c) Carrier shall be solely responsible for any failure to accurately and timely notify the Company and the Broker of any such changes to (including removals from) the list of designated Carrier Representatives. Take It Away Tom! also gives the Carrier Admin the ability to remove these accounts as well. It is solely the Carriers responsibility to maintain their employee account from abuse. The Carrier agrees to maintain all liability from previous Carrier Representatives given access to Take It Away Tom! Platforms.
Carrier must utilize only competent and able personnel who are legally licensed in accordance with Applicable Laws to perform services. Carrier will be solely responsible for ensuring, and will ensure, at Carrier’s cost and expense, that such Carrier Representatives are fully qualified to perform Services hereunder. Carrier will also ensure that any Driver providing Services (1) has sufficient hours available to complete scheduled deliveries in accordance with, and without violation of, applicable hours-of-service regulations and other Applicable Laws, and (2) complies with applicable drug and alcohol testing requirements and any other safety and security requirements under Applicable Laws. Carrier is solely responsible for determining whether scheduled Shipments can be completed on time without violation of Applicable Law.
The relationship between the Parties is solely as independent business enterprises, each of which operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This Agreement is not an employment agreement. Carrier confirms the existence and nature of such contractual relationship each time a Carrier Representative accesses the Take It Away Tom! Platforms. Carrier assumes full responsibility for all taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension, and social security insurance) and other financial obligations due to or otherwise involving Carrier Representatives (including compensation of its Drivers) arising out of the Services. Neither the Company, Broker, nor any Shipper is an agent of Carrier and Carrier is not an agent of the Company, Broker, or any Shipper. This Agreement does not create a joint venture, joint enterprise or partnership between the Company, Broker, Shipper and/or Carrier.
Carrier will furnish all equipment necessary or required for the performance of Services (the “Equipment”). Carrier will maintain all Equipment (i) in good repair and clean, working condition, (ii) in full compliance with Applicable Laws, (iii) free of contamination and infestation, and (iv) in the case of dry-van and refrigerated trailers, water-tight and odor-free. Carrier represents and warrants that its trailers have not been and will not be used to haul municipal, residual, industrial, chemical, liquid or solid waste. For all Shipments to be hauled using flatbed trailers, Carrier shall be responsible for load securement in accordance with Applicable Law. For all Shipments that Broker or Shipper designate as requiring refrigeration, Carrier shall maintain proper temperature control in accordance with temperature requirements provided to Carrier by Shipper or Broker and in accordance with all Applicable Laws, including pre-cooling the trailer prior to pickup if requested. For refrigerated Shipments, Carrier shall maintain written records that document Carrier’s compliance with temperature requirements (including ambient temperature during loading and unloading and of temperature during transit) and shall provide such records to the Company, Broker, Shipper, or Receiver upon request.
If Carrier elects to provide access to any of the Take It Away Tom! Platforms to any Driver, any directions, pickup or delivery instructions or other information provided through such Take It Away Tom! Platform shall be deemed to be provided by Carrier to the Driver. Any navigational directions that Broker offers to Carrier or its Drivers are offered as a convenience only, and Carrier and its Drivers will have no obligation to follow such navigational directions. Notwithstanding any communications or other information transmitted to or from a Driver on any of the Take It Away Tom! Platforms, Carrier agrees that it has full control of its Carrier Representatives in the performance of Services.
Carrier Fee and Payment TERMS
Subject to the terms and conditions hereof, for each Shipment delivered by Carrier, the Company will pay to Carrier (and not any Driver or any other Carrier Representative) or to a factoring company on behalf of Carrier (if so instructed in writing by Carrier) the rates and charges set forth in a rate confirmation provided by the Company to Carrier electronically or otherwise in respect of such Shipment (the “Rate Confirmation”). The Rate Confirmation constitutes an integral part of this Agreement and may contain additional terms, all of which are legally binding on Carrier. Carrier hereby agrees that any Shipment that is accepted by any of its Carrier Representatives on any of the Platform or otherwise will be a Shipment and transported by the Carrier will be subject in all respects to this Agreement at the rates and charges, and will be subject to the other terms set forth in the Rate Confirmation.
Carrier will evidence each Shipment by a bill of lading that complies with 49 C.F.R. § 373.101 and names Carrier as the transporting motor carrier. Except for information required under 49 C.F.R. § 373.101, in no event will Carrier’s tariff, terms and conditions, service guide, credit application, bill of lading (including any deemed terms and conditions under Applicable Law), or similar shipping document apply to the Platform. Upon delivery of each Shipment, Carrier will obtain a proof of delivery that serves as a receipt showing the kind and quantity of product delivered to the consignee/receiver, and Carrier will cause the consignee/receiver to sign such receipt. The bill of lading is intended to act as a receipt only. Carrier will notify Broker immediately of any exception made on the bill of lading or delivery receipt.
Carrier shall provide the Company with a complete, legible and otherwise acceptable copy of the bill of lading or other proof of delivery within twenty-four (24) hours after delivery of each Shipment (and, if Carrier has access to any of the Platforms, Carrier agrees to upload such proof of delivery to an Take It Away Tom! Platform). Carrier must submit any supporting documents requested by the Company or Broker promptly and, in any case, within twenty-four (24) hours of Broker’s request. Carrier must bring any valid suit related to unpaid Shipment charges or undercharges for the Carriers Shipment within eighteen (18) months of the delivery date of such Shipment, and Carrier hereby irrevocably waives its right to sue or otherwise seek payment or reimbursement for any such Shipment after such deadline. Any claims in that time shall be resolved through arbitration. (Arbitration Clause)
As required by the U.S. Moving Ahead for Progress in the 21st Century Act (“MAP-21”), the Broker (a) confirms that it has entered into this Agreement as a property broker and (b) acknowledges and agrees that FMCSA regulations prohibit Broker from representing its operations as being those of a motor carrier. As a property broker, the Broker is in the business of identifying and contracting with motor carriers, such as Carrier, authorized to transport the Shipment from Shippers. If the Broker or the Company is named as a “carrier” on any applicable bill of lading, such misstatement will not affect the Company or Broker’s status as a property broker.
The Company will pay Carrier within thirty (30) days of the Company and Broker’s receipt of a signed bill of lading or other proof of delivery and any other related documentation requested by the Company or the Broker thru the Platform or electronic communications (e-mail, text message, sms, etc…). Subject to the preceding sentence, Carrier agrees that the Company may establish payment practices pursuant to which the Company endeavors to make faster payments for certain circumstances including (1) payments made directly from the Company to Carrier (rather than from the Company to a factoring company or other third-party recipient on behalf of Carrier) and/or (2) payments made to Carriers that completed the applicable Shipments on an Platform and/or have used the Platform to upload a proof of delivery or as otherwise requested by the Company or Broker. the Company’s practice, program, or periodic election to make payments earlier than as required by the first sentence of this paragraph may be modified or cancelled by the Company at any time without notice in the Company’s sole discretion.
In order for a Carrier to be eligible for any accessorial payment for any Shipment, Carrier must submit all accessorial requests and receipts within twenty-four (24) hours of delivery of such Shipment and such requests and receipts must be supported by a signed bill of lading with legible arrival and departure times. If the Company advances an accessorial payment (including for lumper services) to Carrier and Carrier does not provide an acceptable receipt for such accessorial payment, Carrier shall return such advance to the Company (or the Company may offset the amount of such advance against any future payments due from the Company to Carrier, as set forth below). The Company accessorial payment rates are subject to change at any time in the Company’s sole discretion and will be posted on all Platforms and updated in the Terms of Use Agreement, together with related terms that govern the accessorial documentation and request process, which are currently located here and which are incorporated by reference into this Agreement.
Carrier agrees that the Company may withhold and offset from any amounts otherwise payable to Carrier or any of its affiliates in any amount (i) that Carrier or any of its affiliates owes or may owe to the Company, Broker, Shipper, a consignor, consignee or receiver of any Shipment, or an affiliate of any of the foregoing, or (ii) that is subject to a validly issued lien. The Carrier (and any third-party recipient of payments on behalf of Carrier) must accept all payments in respect of Shipments from the Company via bank wire transfer (ACH). The Company will not provide payment for Services provided on the Platform any other way, unless by money order or check. Money orders and Checks are reserved as a form of final payment or reimbursements from offsets, underpayments, from overpayments, or any payment made by the Company arising from a dispute.
Carrier agrees that (A) as between the Company and Carrier, the Company shall have the exclusive right to handle the billing of Shipment charges to each Shipper in respect of Services, and (B) as between the Company and each Shipper, the Company is solely responsible for paying Carrier’s Shipment charges for Services. Carrier will not seek payment from any Shipper, Broker, Affiliate, or any consignor, consignee or receiver for any Shipment. Carrier hereby irrevocably waives any claims Carrier may have against any Broker, Shipper, or any consignor, consignee or receiver of any Shipment, or any third-party payer in respect of any Shipment, to the extent related to the payment of Carrier’s Shipment charges for Shipments.
Carrier hereby waives and releases any liens or other claims of any nature that Carrier might otherwise have over any freight of any Shipper in the care, custody or control of Carrier. If any Carrier Representative refuses to deliver any Shipment after pickup unless the Company or Broker makes a payment in excess of the amount set forth in the Rate Confirmation for such Shipment, then Carrier agrees to promptly pay to the Company, as liquidated damages and not as a penalty, $1,000 in respect of such withheld Shipment (in addition to delivering such Shipment as required hereunder, refunding to the Company any such amounts paid in excess of the Rate Confirmation, and any other remedies available to the Company hereunder or under Applicable Law).
Carrier will charge the Company sales tax, value added tax, goods and services tax, or similar taxes (collectively “Transaction Taxes”) that are owed by the Company solely as a result of the Services provided by Carrier to the Company and which are required or permitted to be collected from the Company by the Carrier under Applicable Laws. Carrier will provide valid tax invoices (or equivalent information as requested by the Company) to the Company, consistent with the requirements of the relevant jurisdiction.
Upon request, Carrier shall provide the Company or Broker with a validly executed U.S. Internal Revenue Service form to establish its U.S. or non-U.S. status or any other necessary tax documentation. Where any taxation authority imposes any tax in connection with the payment for Services by the Company/Broker to Carrier and requires the Company to withhold such tax (“Withholding Tax”), the Company may deduct such Withholding Tax from the payment to Carrier (including amounts that the Company/Broker reasonably determines were required to have been withheld out of previous payments, but were erroneously not withheld) and remit such Withholding Tax to the relevant taxing authority. In the event a reduced Withholding Tax rate may apply on payments to Carrier, Carrier shall provide to the Company, before the relevant payment is to be made, all documentation necessary to demonstrate that Carrier is qualified for the reduced rate of Withholding Tax.
Notice of Claims
The Parties shall provide each other with immediate notice of any cargo loss or damage claims as well as any other claims arising out of this Agreement and will cooperate with each other in resolution of any such claim(s).
Shippers disclosure of Claims for cargo Loss, Damaged, or delayed
Users are advised for informational purposes that a Carrier’s liability for lost, destroyed damaged or delayed cargo in interstate and international transit generally is defined by 14 USC §14706 (referred to as “the Carmack Amendment”) and by comparable state common law for intrastate transit. A Carrier may impose time limits for filing of loss and damage claims, as well as for filing any action at law for cargo loss or damage as provided by 49 USC §14706. The Company recommends consulting with a qualified attorney regarding any action you may wish to pursue against a Carrier based on lost, damaged, delayed or destroyed cargo.
Should you wish the Company’s assistance with or other participation in any claim for lost, damaged, delayed or destroyed cargo, you should file with the Company its written notice of claim to Carrier. The Company may facilitate processing of cargo claims; PROVIDED, however, you understand and agree that, notwithstanding the company’s participation in or assistance with any cargo claim, the Company is not liable for any cargo loss which was not proximately caused by the Company’s own wrongdoing.
Carriers disclosure for Cargo Loss, Damaged, or Delayed
Regardless of the point of origin, destination or routing of the relevant Shipment, Carrier’s liability for any loss, delay, damage or destruction of goods, property or other freight (collectively, “Cargo”) tendered to Carrier pursuant to this Agreement shall be governed by the Carmack Amendment as currently codified at 49 U.S.C. § 14706 et seq., except as expressly modified by this Agreement. No exclusions or limitations contained in any bill of lading (including any deemed contract terms and conditions under Applicable Laws), service guide, rules book, tariff or insurance coverage will limit or reduce Carrier’s liability under this Agreement. Carrier agrees to be liable for the full invoice value of the Cargo lost, damaged, delayed, or destroyed. Carrier will abide by any Cargo handling instructions communicated to Carrier by Broker or the applicable Shipper.
Carrier will have the right to salvage Cargo or a right to claim an offset for the value of salvage of Cargo with the Company’s prior written consent, which will not be withheld if the applicable Shipper allows salvage of such Cargo or an offset for its salvage value. In the event of an accident, Carrier will be responsible for securement, cleanup and disposal of Cargo as directed by the applicable Shipper. In the event of a missing, tampered with or broken trailer seal, Carrier will be, at the Shipper’s sole discretion, liable for partial or full loss or damage to Cargo without salvage, inspection or establishment of actual damages. In the event the trailer is impounded, Carrier authorizes the Cargo owner or their designee to remove any Cargo contained therein.
Processing of claims for Cargo loss, damage or delay (collectively, “Cargo Claims”) will be governed by the provisions of 49 C.F.R. § 370, except as expressly modified by this Agreement. Carrier must pay, decline or make a firm compromise of settlement within thirty (30) days after receipt of any Cargo Claim. Carrier and Broker will cooperate with each other and with the applicable Shipper in investigating any Cargo Claims and submit them to the Company. Carrier agrees that the relevant Shipper will be allowed not less than twelve months from the date of Shipment delivery (or the date when delivery reasonably should have been made) to file a claim for Cargo loss, damage or delay. Carrier agrees that such Shipper will be allowed not less than two years and one day from the date of its written claim disallowance, in whole or in part, to commence litigation for Cargo loss, damage or delay.
Each Shipper of Cargo is a third-party beneficiary of this Cargo Loss, Damage or Delay and is entitled to enforce the obligations of Carrier set forth in this Cargo Loss, Damage or Delay directly against Carrier as if such Shipper was a party hereto.
Carriers Liability for Cargo Loss or Damaged
- Carrier’s liability for lost, destroyed, damaged or delayed Shipments is governed by 49 USC §14706 (referred to as “the Carmack Amendment”) regardless of whether such standard would apply in the absence of this Agreement. Such liability shall include, but not be limited to, amounts required to inspect, test, segregate and process claims. In addition to any such liability, if Shipper assesses charges against the Company with respect to late deliveries by Carrier, Carrier shall be responsible for such amounts regardless of whether these are loss, damage or destruction to the Shipment in question.
- The Company may assist Shippers with claims against Carriers for lost, damaged, delayed or destroyed cargo and Carrier acknowledges and agrees that the Company may likewise file such claims directly as the assignee of the Shipper. Shipper and the Company shall have twelve (12) months from the date of delivery of any Shipment (or, if no delivery, then not less than twelve (12) months from the date on which delivery should have occurred) during which to file claims. Shipper and the Company shall have not less than two (2) years from the date of denial of all or any part of any such claim during which to initiate a legal proceeding with respect to such claim. Carrier will pay, deny or offer to settle any claim hereunder within thirty (30) days of submission. Otherwise, 49 C.F.R. Part 370 will govern processing of claims.
- Shipper shall have sole discretion as to whether to allow salvage of any damaged Shipment. If no salvage is allowed, Carrier shall not be entitled to a credit for salvage value. Any expenses incurred in preparation of goods for salvage shall be borne by Carrier.
- Carrier will abide by any cargo handling instructions communicated to Carrier by the Company or the Shipper, including any regarding provision of temperature controlled service. If cargo is tendered and a reasonable person would understand such cargo to require controlled temperature service, and no such service has been requested, Carrier shall contact the Company immediately and in any event, prior to loading any such cargo onto Carrier’s conveyance. Without limiting the foregoing, if Carrier is providing service with respect to commodities requiring temperature control, Carrier shall ensure that its equipment is pre-cooled to required temperature ranges prior to or at the time of loading, and shall ensure that temperature is maintained at all times within specified temperature ranges. Carrier shall maintain the ability to provide a downloadable report of temperature during transit, and will retain such records for no less than two (2) years from the date of delivery, which records will be made available to the Company or Shipper upon request. Carrier acknowledges and agrees that failure to abide by instructions regarding handling of food or evidence of possible unauthorized access to shipments may result in rejection of shipments due to possible adulteration or contamination.
- Any attempt to limit your liability for lost, destroyed, damaged or delayed Shipments, including, but not limited to, via provisions contained in any bill of lading, delivery receipt or tariff shall be deemed null and void. Exclusions in your insurance coverage shall not exonerate you from this liability.
Affiliate Marketer Requirements and Responsibilities
Affiliate represents and warrants that it is legally qualified in accordance with all applicable federal, state, local, provincial, foreign, and international laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Laws”) to provide, as a Affiliate Marketer constituted by this Agreement.
The User Agrees to comply with all Applicable Laws in the performance of Marketing and its obligations under this Agreement.
The Affiliate warrants and agrees that it has provided or will provide all notices and obtained (or will obtain) all rights, consents and permissions (collectively, “Consents”) necessary to provide the Company with the personally identifiable information of any Affiliates Representative and provide to the Company; it is in compliance, and will remain in compliance during the term of this Agreement, with all Applicable Laws relating to data protection, privacy, personal information, identity theft, data breach, consumer protection, and data security.
Affiliate Marketers formation Requirements
Corporate Affiliates must meet the following corporate formation requirements to meet the Affiliate Marketer relationship criteria provided by your state:
- Must have an LLC, or Corp.
- Must have and EIN (SOCIAL SECURITY NUMBERS WILL NOT BE ACCEPTED)
Performance of services by affiliate Marketer
The Affiliate Marketer is solely responsible for controlling the method, manner, and means of accomplishing the performance of Services on the Platform. Affiliate will be assigned Users based on the Users region for Technical Support (this is based on the proximity of the Users to Affiliate) or by being the Affiliate Marketer associated with the new User if an Affiliate Broker is not available (this is when you refer the new User, they will automatically be assigned to your Affiliate Account). All Users on the Platform is assigned to a Registered Affiliate on the Platform.
With any violation of this Terms of Use Agreement that grants a life time ban or suspension, Affiliate agrees and understands the Affiliate will waive and forfeit all rights to any and all future affiliate commissions.
In the performance of Marketing, the Affiliate will be solely responsible for the acts and omissions of each of its employees, agents, representatives, contractors (including independent contractors and subcontractors) and any other service providers engaged by the User (including its Representatives). Affiliate agrees to notify the Company immediately of any changes to (including removals from) the list of Affiliates Representatives so designated and Affiliate shall be solely responsible for any failure to accurately and timely notify the Company of any such changes to (including removals from) the list of designated Affiliate Representatives. Take It Away Tom! also gives the Affiliate Admin the ability to remove these accounts as well. It is solely the Users responsibility to maintain their employee account from abuse. The User agrees to maintain all liability from previous User’s Representatives given access to Take It Away Tom! Platforms.
User must utilize only competent and able personnel who are legally licensed in accordance with Applicable Laws to perform the Marketing for the Platform. User will be solely responsible for ensuring, and will ensure, at User’s cost and expense, that such User’s Representatives are fully qualified to perform Marketing hereunder. User agrees that it has full control of its User’s Representatives in the performance of Marketing.
The relationship between all Parties is solely as independent business enterprises, each of which operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This Agreement is not an employment agreement. User confirms the existence and nature of such contractual relationship each time a User’s Representative accesses the Take It Away Tom! Platforms. User assumes full responsibility for all taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension, and social security insurance) and other financial obligations due to or otherwise involving User’s Representatives (including compensation of its employees) arising out of the Marketing of the Platform. Neither the Company, Carrier, Broker, nor any Shipper is an agent of Affiliate and Affiliate is not an agent of the Company, Carrier, Broker, or any Shipper. This Agreement does not create a joint venture, joint enterprise or partnership between the Company, Affiliate, Brokers, Shippers, and/or Carriers.
Affiliate will furnish all equipment necessary or required for the performance of the Services they provide. The Affiliate Understands and agrees this is a Business to Business relationship as independent parties. The Company is a Software Company that provides a Transportation Brokerage Platform. The Affiliate is the professional marketer advertising the use of the Platform. The Platform and the Company is a licensed transportation broker, this is for compliance with the law. The Company at no time represents itself or act’s as a Marketing Agent, Transportation Broker, Carrier, or Shipper. All Users understand that any action provided by the Platform, was done autonomously and based on the algorithms’ code. At no time will the Company assign Referrals unless the Company receives a written Dispute, the Platform can assign Referrals, this action by the platform is out of the company direct supervision and/or control and is facilitated by your Referral Code. TAKE IT AWAY TOM! DOES NOT REPRESENT IT SELF AS A MARKETING AGENT OR PROFESSIONAL, THE COMPANY DEVELOPS, MAINTAINS, AND PROVIDES THE PLATFORM.
Affiliate also will provide technical support and troubleshooting for their assigned users. The Company will assist in Technical support related issues where the assigned Affiliate has extinguished all available options. It is the Affiliates responsibility to understand the full functionality of the Platform they are using to provide and sell services. Affiliate can provide services outside of the platform such as training, consulting, and User assistance and charge for these services independently. If you are wanting to sell a product or service associated with the Platform, the Company does not warrant or guaranty such activities of the Affiliate participating in such activities, and by doing such activity does not constitute a joint venture or partnership.
The Company does not govern additional services provided by Affiliate or other Users. The Company does how ever provide letters of endorsements for products and services providing support for the Platform. The Company holds no liability to the Affiliate for canceling, discontinuing, or suspending the Platform, Services, or other Technologies they built their business around. The Company maintains all ownership rights to the Platform, Services on the Platform, and other Technologies associated with the Company, Platform, Services on the Platform, and other Technologies associated with the Platform.
Responsibilities of the Affiliate Marketer
Company shall not specify the business practices of Affiliate, nor regulate the manner in which Affiliate shall operate its business, provided that Affiliate (a) conducts business in a manner that reflects favorably at all times on the Platform and the good name, goodwill and reputation of Company and its affiliates; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company and/or its Affiliates, the Platform or the public, including but not limited to disparagement of Company or the Platform; (c) make no false or misleading representation with respect to Company or the Platform; and (d) make no representations with respect to Company or the Platform that are inconsistent with any applicable license agreement(s) for the Platform provided by Company, promotional materials and other literature distributed by Company pertaining specifically to the Platform, including all liability limitations and disclaimers contained in such materials.
The Affiliate shall be responsible and shall bear all costs for complying with local, state, provincial, federal, national, and international statutes, rules, regulations and ordinances of any kind which related to or affect Affiliate’s duties under this Agreement.
Affiliate agrees to use its best efforts to market the Platform and Services to potential Users consistent with the terms of this Agreement.
Affiliate agrees not to remove or alter in any manner any copyright, trademark or other proprietary notices contained in the Platform.
Affiliate shall protect copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information of Company and its affiliates and report promptly any infringements or suspected infringements of which Affiliate becomes aware and to cooperate fully with Company in its efforts to protect its copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information.
Affiliate shall execute a referral for User registration though referral code for the User to use on registration to the Platform, referral code must be entered on the Users sign-up to the Platform.
Upon the execution, the Company shall apply that Users account transaction history to the Affiliate Account on the Platform. (Most User content will not be available for Affiliates to view, transactional history will be displayed in lump sums for accounting purposes only.)
For purposes of this Agreement, the Platform means the electronic access to programs, content and documentation, and Company’s end user license agreement as it may be modified by Company for use in a Territory. The relationship between the Corporate User and the Company and/or its Affiliates shall be as specified in this Terms of Use Agreement Notwithstanding the foregoing, as between the Company and Affiliate, the Affiliate shall be responsible as defined for providing Users Technical Support to end Users in their designated regions, if providing a service with written consent from the Company. Affiliate will notify Company immediately in the event that it is unable to respond effectively to any end Users’ requests.
The Affiliate may be required to establish and maintain a Technical Support Services Center in the region set forth by the Company based on the physical Region the Affiliate is licensed to provide marketing, referrals, sales, and service support for the Platform on behalf of the Company.
Affiliate agrees, when specified, to provide a User with the support necessary to meet the reasonable needs and requirements for installation, up-dates, functionality, and the Users operation of the Platform.
When applicable Affiliate shall attend initial marketing, application, and technical training as required and provided by Company; provided, however, that Company shall not require Affiliate to market or support Platform according to a marketing plan or system prescribed in substantial part by Company. The Affiliate will however, be responsible to display and explain in detail the methods by which they plan to achieve success.
Affiliate shall submit an annual marketing plan to Company outlining, among other things, activities. The annual marketing plan shall be devised solely by Affiliate and Affiliate shall not be required to follow an operating plan, standard procedure, training manual, or its substantial equivalent, published by Company.
Affiliate shall report periodically in writing, upon request to Company the status of the following:
Company leads provided by company
Marketing activities in progress
Sales forecasts
Implementations in progress
Affiliate shall appoint one of its employees to be responsible for such reporting and make the name of such employee available to Company.
Affiliate Referrals and Disputes
Affiliate shall keep accurate records of the referred User Registered to the Affiliate the Platform, and shall make these records available for review by a representative of Company within ten (10) business days following the end of each month. (This is so that we are able to make sure you receive credit where credit is due.)
Referrals are assigned to Affiliates upon the Users’ Registration to the Platform. Users are prompted for their Referral Code, if the User does not enter a Referral Code the Referral assignment will automatically be assigned to the Company.
The assignment of the referral will be made permanent on the sixty (60) day anniversary of the registration of the User.
If you notice a Referral was not added to your Affiliate Account upon the Users Registration to the Platform, contact the Company immediately.
Affiliate understands and agrees to review all referral records upon the monthly Platform referral update for referral assignment accuracy. Disputes over referral assignment shall be brought to the Companies attention in writing within ten (10) business days following the monthly Platform referral update. Any disputes will go under Company review, where the Company will contact the referred User and inquire about the proper Referral Code for that Users’ account.
Affiliate understands and agrees that no referral disputes will be heard after the referred User account reaches sixty (60) days of maturity. Maintaining accurate records for accounting purposes fall under due-diligence, any failure of an Affiliates obligation to due-diligence will result in all liability or losses arising out of that failure solely belongs to the Affiliate.
Affiliate Marketers Granted Rights
(General Rights) Subject to the terms and conditions of this Agreement, Company hereby grants to Affiliate the right to advertise, market and sell to Corporate Users, Government Agencies and other potential Users of the Platform for their own communication purposes only, and not for remarketing or redistribution, and not for use in a data center environment, unless otherwise agreed to by Company prior in writing, the Platform listed in this Agreement, and to sell and/or bundle Platform Management for the Platform and to provide first line Technical Support and implementation services for the Platform in the regions linked in your Affiliate Account, providing Affiliate meets the criteria required for delivering services as a Affiliate to the Company’s Platform Users.
(Third Party Right) Company and Affiliate acknowledge that Company derives certain rights herein from third parties and that Company reserves the right to modify or amend this Agreement if mandated by such third parties.
Distribution, Regions, and Annual Quota's by Affiliate Marketer
Affiliate agrees to distribute Platform only through the Company Term of Use Agreement/User Registration Card between the User and Company. Affiliate acknowledges that the Company Terms of Use Agreement/User Registration Card specifies the terms under which a User receives, holds and uses the Platform and Service.
The Region for the Affiliate shall be defined by zip code and will be designated automatically by radius and population. Company reserves the right to adjust or modify the region upon renewal of this Agreement or from time to time.
The Annual Quota for Affiliate shall be defined in this Agreement as Non Obligatory unless you are an Affiliate under contract (Terms of Quota will be defined there as a sub-section of this agreement and incorporated herein). Company reserves the right to adjust or modify the Annual Quota upon renewal of this Agreement or from time to time.
Duties of the Company to Affiliate Marketers
So long as Affiliate is not in default hereunder, Company agrees to provide Platform to Affiliate in accordance with the terms and conditions of this Agreement.
Upon the request of Affiliate, Company shall implement or incorporate prices or fees in effect or mutually agreed upon by the parties:
- Provide the Platform to Affiliate, subject to the Company’s rights to change its prices or fees pursuant to this Agreement.
- Make available a reasonable marketing information, demonstrations and other sales/marketing aids available from Company relating to the Platform to the Affiliate.
- Make available marketing training and support to the Affiliate relating to the Platform.
- Make available technical training and support to the Affiliate relating to the Platform.
- Make available updates of the Platform for the Affiliate as they may become available for distribution.
Company shall not require that Affiliate be limited as to the type, quantity or quality of any product or service that Affiliate sells or desires to sell.
Company shall not require procedures for which the Affiliate may deal with Users, however will require reasonable levels of satisfaction from the Users related to the services provided by the Affiliate.
Any materials shall be shipped FOB from the Company’s designated suppliers place of business, and Affiliate shall be responsible for any excise, sales and other taxes which may be levied on the license and shipment of such materials.
In the event of any cause beyond the control of Company, Company shall not be liable for any delay in shipment or non-delivery of the Platform covered under this Agreement.
Affiliate Marketers Fee and Payment TERMS
Subject to the terms and conditions hereof, for each Shipment delivered by Carrier, the Company will pay to the Affiliate (and not any other Affiliate or any other of the Affiliate’s Representatives) the rates and charges set forth in a rate confirmation provided by the Company to the Affiliate electronically or otherwise in respect of such Shipment (the “Rate Confirmation”). The Rate Confirmation constitutes an integral part of this Agreement and may contain additional terms, all of which are legally binding on the Affiliate. The Affiliate hereby agrees that any Shipment that is accepted by any of its assigned Users on any of the Platforms will be subject in all respects to this Agreement at the rates and charges, and subject to the other terms set forth in the Rate Confirmation.
The Affiliate understands and agrees, the Brokers verification of the Carrier evidence of each Shipment by a bill of lading that complies with 49 C.F.R. § 373.101 to the Company standards on the Platform is required for the Payment Process to commence.
The Affiliate must bring any valid suit related to unpaid Shipment Commissions or undercharges for the Affiliates Shipments within eighteen (18) months of the delivery date of such Shipment, and the Affiliate hereby irrevocably waives its right to sue or otherwise seek payment or reimbursement for any such Shipment after such deadline. Any claims in that time shall be resolved through arbitration. (Arbitration Clause)
The Company will pay the Affiliate within thirty (30) days of the Company’s receipt of a signed bill of lading or other proof of delivery and any other related documentation requested by the Company thru the Platform. Subject to the preceding sentence, the Affiliate agrees that the Company may establish payment practices pursuant to which the Company endeavors to make faster payments for certain circumstances. The Company’s practice, program, or periodic election to make payments earlier than as required by the first sentence of this paragraph may be modified or cancelled by the Company at any time without notice in the Company’s sole discretion.
The Affiliate agrees that the Company may withhold and offset from any amounts otherwise payable to the Affiliate or any of its affiliates any amount (i) that the Affiliate or any of its affiliates owes or may owe to the Company, Carrier, Broker, Shipper, a consignor, consignee or receiver of any Shipment, or an affiliate of any of the foregoing, or (ii) that is subject to a validly issued lien. The Affiliate (and any third-party recipient of payments on behalf of the Carrier) must accept all payments in respect of Shipments from the Company via bank wire transfer (ACH). The Company will not provide payment for Services provided on the Platform any other way, unless by money order or check. Money orders and Checks are reserved as a form of final payment or reimbursements from offsets, underpayments, overpayments, or any payment made by the Company arising from a dispute.
The Affiliate agrees that (i) as between Affiliate and the Company, the Company shall have the exclusive right to handle the billing of Shipment charges to each Shipper in respect of Services, and (ii) as between Affiliate and each Platform User, the Company is solely responsible for paying Carrier’s and Brokers freight charges for Services. The Affiliate will not seek payment from any Shipper, Broker, Carrier, Affiliate, or any consignor, consignee or receiver for any Shipment. The Affiliate hereby irrevocably waives any claims the Affiliate may have against any Carrier, Broker, Shipper, or any consignor, consignee or receiver of any Shipment, or any third-party payer in respect of any Shipment, to the extent related to the payment of the Affiliates commissions for Shipments or payment for Services provided by a Carrier.
The Affiliate hereby waives and releases any liens or other claims of any nature that the Affiliate might otherwise have over any Shipment from any Shipper in the care, custody or control of an assigned Shipment. In the event a Carrier refuses to deliver are Shipment in their custody, the Broker and the Affiliate will cause the Carrier to comply with reference to the Carriers prevision for refusal to deliver. In the event a Carrier does not deliver a Shipment from refusal, the Company will not release any funds to any party in relation to Services rendered, as the Services were not rendered. The Affiliate will not be compensated for such Shipment until the issue is resolved.
The Affiliate will charge the Company sales tax, value added tax, goods and services tax, or similar taxes (collectively “Transaction Taxes”) that are owed by the Company solely as a result of the Services provided by the Affiliate to the Company and which are required or permitted to be collected from Affiliate by the Company under Applicable Laws. The Affiliate will provide valid tax invoices (or equivalent information as requested by the Company) to the Company, consistent with the requirements of the relevant jurisdiction.
Upon request, the Affiliate shall provide the Company with a validly executed U.S. Internal Revenue Service form to establish its U.S. or non-U.S. status or any other necessary tax documentation. Where any taxation authority imposes any tax in connection with the payment for Services by the Company to the Affiliate and requires the Company to withhold such tax (“Withholding Tax”), the Company may deduct such Withholding Tax from the payment to the Affiliate (including amounts that the Company reasonably determines were required to have been withheld out of previous payments, but were erroneously not withheld) and remit such Withholding Tax to the relevant taxing authority. In the event a reduced Withholding Tax rate may apply on payments to the Affiliate, the Affiliate shall provide to the Company, before the relevant payment is to be made, all documentation necessary to demonstrate that the Affiliate is qualified for the reduced rate of Withholding Tax.
The Annual Quota for Affiliate shall be defined in this Agreement as Non Obligatory unless you are an Affiliate under contract (Terms of Quota will be defined there as a sub-section of this agreement and incorporated herein). Company reserves the right to adjust or modify the Annual Quota upon renewal of this Agreement or from time to time.
Affiliate are compensated .5% royalty on every transaction in their Affiliate Referral Database. Corporate Affiliate Brokers receive 6% on dispatched technical support calls and 6% on all assigned transactions.
Services, training and support, when applicable and provided by Company, shall be paid for by Affiliate according to agreed upon terms, and a monthly billing report will be created for Affiliate by Company to show utilization of time and charges. A LATE PAYMENT CHARGE of 12% or the maximum rate permitted by applicable law, of the outstanding balance due to Company per month will be imposed on all overdue accounts.
General Payment Terms
The Company is authorized to, and shall be responsible for, billing, collection, and payments from shippers, consignees, Carriers, Brokers, and third parties responsible for payment of its charges. The Company shall pay the Users for agreed upon charges (commissions and Royalties on carrier charges as specified by rate schedule or load confirmations, which are hereby incorporated by reference) within 29 days of receipt of Carriers invoice and proof of delivery.
The Company shall pay freight charges quoted to the Shipper on the Platform regardless of whether Shipper pays the Company. In exchange for this guarantee of payment, Carriers shall not invoice or otherwise attempt to collect any amounts related to services provided with respect to any Shipment from any Shipper or any other third party; Carrier shall look solely to the Company for payment of freight charges hereunder.
Carrier hereby waive any right they may otherwise have to proceed or commence any action against any Shipper for the collection of any freight bills arising out of transportation services hereunder. Furthermore, Carrier waives any and all lien rights with respect to any Shipment and if any lien is claimed with respect to any such Shipment by Carrier or a third party to which Carrier tenders such Shipment, Carrier shall immediately take such action as is necessary to satisfy such lien.
All Users agree that all Users are individually responsible for the collection and/or payment of all taxes, which the individual User may be liable for in any jurisdiction arising from the use of the Platform for Service. The Company is not responsible for collecting, reporting, paying, or remitting to any User any such taxes.
Payment Facilitation and Processing
All charges are facilitated through a third-party payment processing service. The Company may replace its third-party payment processing services without notice to you.
The Company’s Payment processing services are provided by TAFS and subject to the TAFS Connected Account Agreement (available at https://www.tafs.com/factoring/freight-brokers/). (collectively, the “TAFS Terms”). By using the Platform to receive payment proceeds, you agree to be bound by the TAFS Terms, which may be modified from time to time. As a condition of the Company enabling payment processing services through TAFS, you authorize the Company to obtain all necessary access and perform all necessary activity on your TAFS Connected Account to facilitate your provision of Services as contemplated by the Agreement and your relationship with the Company. You further agree to provide accurate and complete information about you and your business, and authorize the Company to share it and transaction information with TAFS for the purposes of facilitating of the payment processing services provided by TAFS. The Company reserves the right to switch payment processing vendors in its sole discretion.
Service Incentive Payments
The Company may, in its sole discretion, offer to Users a Service Incentive Payments (“SIP”). The SIP, if any, will be quoted separately from the Carriers Fee. To qualify for the SIP: (i), User must be in compliance with any and all applicable laws, rules and regulations at all times while performing services (this does including compliance with speed limits and hours of service regulations); (ii) Users must perform the service at the appointed time per the SIP; (iii) Users must provide a proof to the Company within twenty-four hours of the Service which indicates that the Service was Completed without loss or damage; and (iv) prior to payment, the Company must not have received any complaint or claim from any User or receiver regarding the Users services with respect to the SIP in question. If the Company pays the SIP to the User, but later learns that the User failed to abide by applicable laws in performance of the services to which the SIP related, or if the Company subsequently receives a claim or complaint from another User or receiver related to the services to which the SIP is related, User will refund the SIP upon demand. The Company may offset the amount of such SIP against any funds due and owing to or from the Company.
Overpayment; Nonpayment
If at any time a User inadvertently pays the Company an amount that is more than the amount due, the Company shall not be obligated to immediately return any such overpayment, but the amount or amounts otherwise payable for any prior or subsequent period or periods shall be reduced by such overpayment without any interest component being imputed on such overpayment. Refund of inadvertent payments in excess of the amount due may be requested, and shall be processed within 60 days if there are no other past due unpaid invoices.
The Company reserves the right to immediately suspend or terminate User’s access to Services and/or the Platform in the event of any breach of this Agreement, including but not limited to the payment terms in this Agreement, the Company further reserves the right to pursue any and all remedies available to it under applicable law, including reporting User to applicable credit reporting agencies, in the event of any unpaid Fees hereunder. All late payments shall bear interest at 12% per annum or the maximum allowed by applicable law, if less than 12%.
Payment Disputes
In order for User to dispute any invoice, User’s basis for the dispute must be reasonable and User must notify the Company of the dispute in writing (including information regarding the amount of the invoice that is disputed and the basis for such dispute) within three days of the invoice date by sending an email to TIAT@takeitawaytom.com. If User fails to notify the Company of any invoice dispute within such three-day period, User waives its right to dispute the invoice. Except when User has provided credit card information on the Platform, if User reasonably disputes a portion of an invoice to the Company within such three-day period, User will pay (i) the undisputed portion of the invoice in accordance with the terms set forth in this Agreement, and (ii) any disputed amount in accordance with the payment terms set forth in this Agreement within (iii) within thirty days of the original invoice date if the Company determines not to issue a revised invoice and (iv) within thirty days of the invoice date included in the new invoice issued by the Company, if the Company issues a revised invoice. If User has provided credit card information on the Platform and reasonably disputes a portion of a Company invoice within such three-day period, the Company will issue a refund to User’s credit card if the Company issues a revised invoice as a result of User’s dispute.
Currency
All monies due Company shall compensate and be remitted in United States dollars. Amounts due to or owed from the Company are to be calculated based upon the information contained in this User Agreement.
GENERAL PROVISIONS
INSURANCE
The Company agrees to maintain, at its own expense, at all times, at least the following insurance coverage amounts:
General Liability: $1,000,000
Auto Liability: $1,000,000
Contingent Cargo Liability: $100,000
Upon request, the Company may procure insurance coverage amounts that exceed these limits, and the evidence of such coverage shall be in the form of an insurance certificate provided to you on request. The Company’s maximum liability to you or other Users for any loss shall be limited to the Company’s insurance policy terms and conditions and the dollar amounts for coverage hereinbelow.
The Company’s contingent cargo insurance is subject to the terms, conditions and certain limitations and/or exclusions as contained in the policy, and the terms, conditions and requirements as outlined within this Agreement, which are subject to change at any time. The existence of the Company’s contingent cargo insurance in no way shifts or places any legal or contractual liability on the Company, nor does it exonerate the User’s duties and liabilities under the 49 USC §14706 or this Agreement.
Publication of Information
The Company has your permission to identify you as a User/Client/Customer of the Company or users of the Platform or Services and to reproduce your name and logo on the Site and in any other marketing materials.
If the User provides the Company with any feedback, suggestions, or other information or ideas regarding the Platform or Services (“Feedback”), you hereby assign to the Company all rights in the Feedback and agree that the Company has the right to use such Feedback and related information in any manner it deems appropriate. The Company will treat any Feedback User provides as non-confidential and non-proprietary. User agrees that User will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
Waiver
No waiver of any provision of this Agreement, or of the breach thereof, shall be construed as a continuing waiver or shall constitute a waiver of any other provision or breach. This Agreement is for specified services pursuant to 49 USC 14101 (b). To the extent that the provisions herein are inconsistent with Part (b), Subtitle IV, of Title 49 USC (ICC Termination Act of 1995) the Parties expressly waive all rights and remedies they may have under the Act.
CHOICE OF LAW
Except to the extent governed by applicable federal law, this Agreement shall be deemed executed in the State of Nevada and shall be interpreted, in the event of a dispute arising hereunder, under the laws of Nevada without regard to its conflicts of laws provisions. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. The parties waive any and all rights and remedies provided by Part B to Title IV of Title 49 to the U.S. Code to the extent such rights and remedies conflict with the provisions of this Agreement. Without limiting the foregoing, the parties expressly waive access to records pursuant to 49 C.F.R. Part 371.
Integration
This Agreement contains the entire understanding of the Parties with respect to the subject matter contained herein, and supersedes all prior Agreements and understandings, verbal and/or written between the Parties with respect to such subject matter. The Parties intend that no extrinsic evidence may be introduced to reform this Agreement in any legal or equitable proceeding. This Agreement does not supersede any agreement that the User has entered with other Users on or off the Platform for Services.
Entire Agreement
This Agreement constitutes the entire agreement between the User and the Company regarding the use of the Platform. The Company’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The word “including” means including without limitation.
Force Majeure
Nonperformance of either party under this Agreement shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, earthquakes, weather conditions, war, acts of terrorism, governmental acts or orders or restrictions, local or national disruptions to transportation networks or operations, fuel shortages or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party. This Agreement does not apply to User’s obligation to pay Fees under this Agreement.
Severability
In the event that the operation of any portion of this Agreement, or If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, results in a violation of any law, or if any provision herein is determined by a court of competent jurisdiction to be held to be invalid, illegal or unenforceable, Shipper, Take It Away Tom!, Affiliate Brokers, Affiliate Marketers, Carriers, and all Users agree that 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, so that portion or provision shall be severable and that the remaining provisions herein shall be continued in full force and in effect. The terms and conditions set forth herein shall survive the termination of this Agreement and the remaining provisions shall not in any way be affected or impaired thereby.
Notices
All notices as required by any User of this Agreement shall be deemed given with the notices prepared, adequately addressed and deposited in the United States mail, postage prepaid. Notices to Take It Away Tom! are adequately addressed as follows:
Take It Away Tom! INC.
1810 E. Sahara Ave. Suit 407
Las Vegas, NV 89104
Phone: TOMSPROFIX (866-777-6349)
Fax: (702) 727-4615
Email: support@takeitawaytom.com
Assignment
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’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.
Attorney’s Fees
In any litigation between the parties, the non-prevailing party shall pay the prevailing party the prevailing party’s reasonable attorney fees and all other costs of proceedings incurred in enforcing this Agreement.
Headings
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Independent Enterprises
The Company and User are and shall remain independent business enterprises. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other. User hereby represents that the individual accepting this Agreement is authorized by User to bind, and does hereby bind, User to the terms hereof. This Agreement does not create a joint venture, joint enterprise or partnership between the parties.
Independent Contractors
The relationship of the Parties to each other shall at all times be that of independent enterprises, independent contractors, Company/Client, or Company/Customer.
Choice of Language
It is the express wish of the parties that these terms and conditions be drawn up in English. Il est de la volonté expresse des parties que ces modalités et conditions soient rédigées et signées en anglais. These terms may be translated into other languages. In the event of a difference in interpretation between the English version of these terms and another version, the English version shall prevail.
If you have any questions about this Agreement, please contact Take It Away Tom! at support@takeitawaytom.com.