CarrierfyTM Carrier Terms of Service
Last Updated February 18, 2020
Welcome to Carrierfy!
Thanks for visiting our website and using the Carrierfy services (including its website, and mobile and web-based applications, and any other tools, products, or services provided by Carrierfy, Inc. that link to or reference these Terms) (collectively, the “Services”). The Services are provided by Carrierfy Inc. (“Carrierfy”, “we,” “our,” or “us”), with an address at 230 Park Avenue, New York, NY 10169.
By using our Services, you are agreeing to these Terms of Service (these “Terms”). Please read them carefully. Our Services include diverse components, so sometimes additional terms or requirements may apply. If additional terms or conditions are available with or applicable to the relevant Services, then those additional terms become part of your agreement with us if you use those Services. By accessing or using the Services, you intend and agree to be legally bound by these Terms. You may wish to print or save a local copy of these Terms for your records.
YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTION 7 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 11, AND A CLASS ACTION WAIVER IN SECTION 11.F., THAT AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SERVICES.
1. Using our Services
The Services include an online marketplace for brokers, shippers and carriers that allows brokers, shippers and carriers to engage in direct transactions with each other. When you browse and use the Services, you must follow any policies made available to you within the Services, including without limitation these Terms.
While Carrierfy provides a platform for such entities to connect, you understand and acknowledge that Carrierfy is not a part of any resulting transactions between brokers, shippers, and carriers that such entities may choose to enter into as a result of posting work opportunities through the Services, submitting requests to connect in response to work opportunities, and/or accepting such requests.
Don’t misuse our Services. For example, don’t interfere with our Services, try to access them using a method other than the interface and the instructions that we provide, or extensively or automatically copy any content from the Services (in other words, absolutely no data scraping is allowed for any purpose). You may use our Services only for personal business use, and only as permitted by law, including, without limitation, applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies, if we are investigating suspected misconduct, or for any other reason.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access through them (“Content”). You may not use Content, except as permitted in these Terms, by its owner, or as otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Services, including the Carrierfy name and logo. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
Our Services display some Content that is not our own; for example, Content belonging to you, brokers, shippers, carriers, other users, and other third parties (collectively, “Third Party Content”). We are not responsible for, and you waive all of our liability with respect to, Third Party Content. Third Party Content is the sole responsibility of the individual or entity that makes it available to you via the Services. We may review Third Party Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content that we believe violates our policies or the law. But we do not generally review content beforehand, and we are not obligated to do so.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of our marketing emails by clicking on the “unsubscribe” link in marketing e-mails or texting “Stop” in response to text messages.Please be aware that there may be a brief period before we are able to process your opt-out.
Some of our Services are available on mobile devices or may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable). By using the Services and not opting out of SMS/iMessage you consent to receive such messages sent via an automatic telephone dialing system.
2. Your Carrierfy Account
A. General. You will need an account in order to use the Services as a broker, shipper, or carrier. If you create your own account, you agree that all registration information you give us will be accurate and current. We reserve the right to review your registration information and approve or deny your registration or request to participate in or maintain an account on the Services in our sole discretion. You may be asked by Carrierfy to provide additional information before a decision is made on your request to participate in or maintain an account on the Services, and you agree to promptly submit any such additional information requested. You may also be required to maintain insurance coverage, and you agree to maintain such coverage in the amounts and of the types communicated to you by Carrierfy from time to time and to provide a certificate of insurance evidencing such coverage, and to comply with all additional related requirements communicated to you by Carrierfy. If your account has been assigned to you by an administrator, such as your employer, different or additional terms may apply and your administrator may be able to access or disable your account. You will timely notify us of any changes to any of the foregoing information. You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Services password, or on which you enable a “Remember Me” or similar functionality (“Activated Device“). Accordingly, you agree that you will be solely responsible for all activities that occur under your Services accounts, including the activities of any individual with whom you share your Services account or an Activated Device. To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account. If you learn of any unauthorized use of your password or account, you agree to contact us at firstname.lastname@example.org.
B. Carrier Accounts. This Section 2.B. applies to you if you have a carrier account on the Services. By participating in the Services as a carrier, you may have the opportunity to view opportunities for work posted by shippers and brokers on the Services and submit “requests to connect” in response to such posts, thereby indicating your interest in and availability to perform the work indicated. In addition to these Terms and our requirements for carriers, each broker and shipper may have its own additional requirements and qualifications that apply to carriers, and you agree to abide by all such requirements. You agree to only submit requests to connect in response to opportunities that you believe in good faith, based on the information provided, you are qualified and otherwise able to handle. When you submit a request to connect in response to a posted work opportunity, the broker or shipper at issue may review your request and accept or reject your request in their sole discretion. Carrierfy shall not be responsible or liable to you for any damages or losses incurred by you as a result of or related to any cancelation of work by a shipper or broker. You agree that prior to submitting a request to connect with a shipper or broker, you will be solely responsible for performing due diligence and evaluating the reputation, character, credit-worthiness, and other aspects of the shippers, brokers, and other users that you choose to engage or interact with or transact business with through or as a result of your use of the Services, to your satisfaction. By participating in the Services as a carrier and submitting requests to connect to shippers and brokers, as between you and Carrierfy, YOU AGREE TO ASSUME THE ENTIRE LIABILITY AND RISK IN ALL RESPECTS RELATED THERETO, INCLUDING, WITHOUT LIMITATION, THE RISK OF CANCELATION AND ALL OTHER RISKS ASSOCIATED WITH SECURING WORK OPPORTUNITIES VIA THE SERVICES AND/OR THE PERFORMANCE (OR ATTEMPTED PERFORMANCE) THEREOF, AND YOU HEREBY DO ASSUME ALL SUCH LIABILITY AND RISK. In addition, you understand, acknowledge, and agree that unless expressly agreed to in writing by Carrierfy and the applicable shipper or broker, Carrierfy is not responsible for paying you any compensation for the performance of any work secured by you via the Services or otherwise, or for facilitating the payment of any such amount, through the Services or otherwise. Should you have a right to receive compensation from a broker or shipper, you acknowledge and agree that such right, if any, shall be solely dependent on the independent contractual or other arrangement between you and such broker or shipper and that these Terms do not and shall not at any time provide to you a right to receive such compensation. You and your affiliates, owners, successors, assigns, representatives, and agents agree to indemnify, defend, and hold harmless Carrierfy, its affiliates, and its and their respective employees, owners, agents, representatives, contractors, successors, and assigns, from and against any claims, demands, suits, or actions brought by you, your representatives, any shippers or brokers, and/or any other party, alleging or claiming that Carrrierfy or any of its indemnified parties above owe you any compensation, damages, losses, costs, expenses, or other liabilities in connection with or related to work obtained or performed by you via the Services, and/or resulting from the cancelation of any such work by the applicable shipper or broker or any third party in whole or in part, and/or in connection with or related to your use of the Services to pursue or secure such work.
C. Shipper and Broker Accounts. This Section 2.C. applies to you if you have a broker or shipper account through the Services. By participating in the Services as a broker or shipper, you may have the opportunity to post work opportunities on the Services for carriers to review and respond to by submitting a “request to connect”. You agree to only post valid, authentic, lawful, and accurate work opportunities on the Services. Should a carrier submit a connection request in response to a posted work opportunity, you will promptly respond to either accept or reject the carrier’s request. You will be solely responsible for performing all necessary due diligence as determined by you and evaluating the reputation, character, qualifications, and other aspects of the carriers and other users that you choose to engage or interact with or transact business with through or as a result of your use of the Services. By participating in the Services as a shipper or broker, submitting work opportunities for carriers, and accepting carrier requests to connect, as between you and Carrierfy, YOU AGREE TO ASSUME THE ENTIRE LIABILITY AND RISK IN ALL RESPECTS RELATED THERETO, INCLUDING, WITHOUT LIMITATION, THE RISK OF CANCELATION BY CARRIERS, THE RISK OF DEFICIENT PERFORMANCE OF SERVICES BY THE CARRIER, AND ALL OTHER RISKS ASSOCIATED WITH POSTING WORK OPPORTUNITIES VIA THE SERVICES AND/OR AGREEING TO RECEIVE SERVICES FROM CARRIERS, AND YOU HEREBY DO ASSUME ALL SUCH LIABILITY AND RISK. When you accept a request to connect (provided you pay for such connection – see Section 2.C. below), information about the carrier that submitted the request to connect will be revealed to you, and you will thereafter be free to follow up with the carrier to make further arrangement with respect to the work opportunity posted by you. You understand, acknowledge, and agree that unless expressly agreed to in writing by Carrierfy, Carrierfy is not responsible for paying any compensation to carriers used by you for the performance of any work secured by you via the Services or otherwise, or for facilitating the payment of any such amount to carriers, through the Services or otherwise. Should a carrier have a right to receive compensation from you, you acknowledge and agree that such right, if any, shall be solely based on the independent contractual or other arrangement between you and such carrier and that these Terms do not and shall not at any time provide the carrier a right to receive any compensation from Carrierfy or from you or any third party. You and your affiliates, employees, owners, representatives, successors, and assigns agree to indemnify, defend, and hold harmless Carrierfy, its affiliates, and its and their respective employees, owners, agents, representatives, contractors, successors, and assigns, from and against any and all claims, demands, suits, or actions brought by you, your representatives, carriers, and/or any other party, alleging or claiming that Carrrierfy or any of its indemnified parties above owe any carrier any compensation, damages, losses, costs, expenses, or other liabilities in connection with or related to work obtained or performed by them for you as a result of their use of the Services, and/or resulting from the cancelation of any such work posted by you on the Services in whole or in part, and/or otherwise in connection with or related to your use of the Services.
D. Fees and Payment. Your use of the Services is contingent on your payment of all fees that Carrierfy charges you from time to time through or otherwise in connection with your use of the Services, and by using the Services, you accept and agree to pay all such fees. Further detail about the applicable fees may be found on the Carrierfy Fees Schedule available at this link (the “Fees Schedule”). The Fees Schedule may be updated or changed by Carrierfy from time to time in its sole discretion, and your continued use of the Services indicates your consent to all such charges listed on the Fees Schedule and any changes thereto. You will be required to maintain current, valid payment information on file with Carrierfy at all times. Accepted payment methods shall be as identified in the Fees Schedule or as otherwise permitted in writing by Carrierfy.
3. Privacy and Feedback
If you submit feedback or suggestions about our Services, you agree that we may use your feedback or suggestions without obligation to you.
4. Content You Submit or Share
You may submit, upload, and share information to or through the Services (“Your Content”), and in doing so you must follow these Terms and the rules and policies referenced in these Terms. You retain ownership of any intellectual property rights that you hold in Your Content. In short, what belongs to you stays yours.
When you upload, submit, or otherwise share Your Content to or through our Services, you give us (and those we work with) a royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that Your Content works better with our Services), communicate, publish, publicly perform, publicly display and distribute Your Content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
You may request that we delete any of Your Content that you submit to the Services by sending us an email at email@example.com. To the extent within our control we’ll remove Your Content from public display and mark it for future deletion if permitted by applicable law; however, it may persist in backup or residual copies for a reasonable period of time (but will not be available to other users through the Services). For purposes of clarification, once you submit or share Your Content with others via the Services (e.g., other users or third parties), we no longer have control over those portions of Your Content and will not be able to delete it or prevent them from using it.
You agree that you will not use the Services to:
- Violate law or a third-party’s rights;
- Submit excessive or unsolicited commercial messages or spam any users;
- Submit malicious content or viruses;
- Solicit other people’s login information, credit card numbers, or other sensitive information;
- Harass or bully other users; or
- Post content that is hate speech, threatening or pornographic, that incites violence or that contains nudity or graphic or gratuitous violence.
5. About Software in our Services
You may be required to download software (such as a mobile or desktop app) to use the Services or certain features of the Services, and the Services may enable you to access software running on our (or our vendors’) servers (collectively, “Software”). You agree that we retain the ownership of all rights, title, and interest in and to the Software. Certain Software may update automatically on your device once a new version or feature is available, and you consent to such automatic updating.
We give you a worldwide, royalty-free, non-sublicensable, non-assignable, and non-exclusive license to use the Software to access the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms. You may not copy, modify, distribute, sell, or lease any part of our Services or Software, nor may you reverse engineer or attempt to extract the source code of the Services or Software, unless laws prohibit those restrictions or you have our written permission.
There may be software programs contained within certain Software that have been licensed to us by third parties. The term “Software” as used herein shall refer to this third-party software except where the term
“Software” is used in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in these Terms apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under these Terms.
6. Modifying and Terminating our Services
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, at any time, without any notice or liability.
You can stop using our Services at any time, although we’ll be sorry to see you go. We may also stop providing Services to you, or add or create new limits to our Services, at any time.Sections 7 – 12 and your payment obligations will survive termination or expiration of these Terms indefinitely.
Sections 7 – 12 will survive termination or expiration of these Terms indefinitely.
7. Our Warranties and Disclaimers
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER CARRIERFY NOR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS, NOR THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, OR REPRESENTATIVES, MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS. WE PROVIDE THE SERVICES “AS-IS.” WITHOUT LIMTIING THE GENERALITY OF ANY OF THE FOREGOING, CARRIERFY DOES NOT MAKE, AND SPECIFICALLY HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM CARRIERFY’S NEGLIGENCE. CARRIERFY MAKES NO PROMISES ABOUT MINIMUM EARNINGS OR REVENUE. ADDITIONALLY, WE ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY BROKERS, SHIPPERS, OR CARRIERS, INCLUDING, WITHOUT LIMITATION, ANY REQUIREMENTS OR QUALIFICATIONS IMPOSED BY BROKERS OR SHIPPERS ON CARRIERS. CARRIERFY FURTHER EXPRESSLY DISCLAIMS THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THEY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR THAT THEY WILL OPERATE WITHOUT ERROR; THAT THE INFORMATION, CONTENT, MATERIALS, REQUESTS TO CONNECT, AND WORK OPPORTUNITIES ON OR AVAILABLE THROUGH THE SERVICES WILL BE COMPLETE, ACCURATE, ERROR-FREE, OR AS REPRESENTED BY ANY USER; OR THAT CARRIERS, BROKERS, OR SHIPPERS WILL PERFORM AS PROMISED. NO USER IS OBLIGATED BY CARRIERFY TO MEET OR INTERACT OFFLINE WITH ANY OTHER USER. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF OUR SERVICES. YOU ACKNOWLEDGE AND UNDERSTAND THAT CARRIERFY MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR EXPERIENCE WITH USERS YOU MEET THROUGH OUR SERVICES, AND THAT YOU INTERACT WITH THEM AT YOUR OWN PERIL AND AT YOUR OWN RISK.
Carrierfy disclaims all, and assumes no responsibility for, evaluating or verifying the accuracy, suitability, truthfulness or authenticity of any information contained within any work opportunities or of any other information posted or provided by users of the Services. We assume no responsibility for ensuring users’ compliance with any applicable laws, rules and regulations, this Agreement, OR THE TERMS OF THE TRANSACTIONS OR AGREEMENTS ENTERED INTO BETWEEN USERS OF THE SERVICES AS A RESULT OF THEIR USE OF THE SERVICES OR OTHERWISE. We have not inspected the location where any work will be performed or the TRAVEL routes related thereto. We are not responsible for the conduct, whether online or offline, of any user of our Services. Under no circumstances will Carrierfy, its affiliates, or its or their respective owners, employees, officers, representatives, agents, advertisers successors, and assigns be responsible for any loss or damage, including but not limited to property damage, personal injury or death, resulting from anyone’s use of the Services, any content posted on the Services or transmitted to you or any other user, or any interactions between users of our Services, whether online or offline.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED.
YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
8. Liability for our Services
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CARRIERFY (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CARRIERFY (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY AND ALL CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, OR RELATING TO YOUR USE OF THE SERVICES, OR YOUR RELATIONSHIP WITH, OR PROVISION OF SERVICES TO, A SHIPPER, OR ANY PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY THAT YOU OR YOUR EMPLOYEES OR CONTRACTORS SUFFER OR CAUSE.
IN ALL CASES RELATING TO PROVIDING YOU THE SERVICES, CARRIERFY (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
9. Business/Employer Uses of our Services; Restrictive Covenan
A. If you are using our Services on behalf of a business or employer, you are accepting these Terms on their behalf, and that business or employer agrees to be bound by these Terms. So long as you have an account with Carrierfy and for twelve (12) months thereafter, you shall not, directly or indirectly, on behalf of yourself or a third party, knowingly hire or engage any person who was an employee or contractor of the other party at any time during the above-referenced period or knowingly solicit any such person to terminate or reduce the scope of their employment or business relationship with the other party. In the event a party hires or engages an employee or contractor of the other in breach of this Section 12, the non-breaching party shall be entitled to receive, as liquidated damages and not as a penalty, an amount equal to one hundred percent (100%) of the compensation paid to the relevant employee or contractor by or on behalf of the breaching party during his or her first year of service. The parties acknowledge that it would be difficult or impossible to accurately calculate actual damages caused by a breach of this Section 12 and agree that the liquidated damages specified above constitute a reasonable approximation of such damages.
B. As partial consideration for being granted access to the Carrierfy online Services, you agree that, during the term of this Agreement and for twelve (12) months thereafter, you shall not, directly or indirectly, (i) circumvent, initiate, solicit, negotiate, contract or enter into any business transactions related to the shipment of freight, with any user of the Services introduced to you by us through our Services, without our prior written consent; or (ii) enter into any transaction in connection with any opportunities for work posted via the Services; with, if you are a shipper a broker, a user that found the work opportunity through use of the Services; or with, if you are a carrier and you found the work opportunity through the Services, the shipper or broker that posted the work opportunity; or (iii) otherwise solicit or communicate with any user for the purpose of inducing such user to terminate or reduce the scope of its business relationship with Carrierfy. In the event you enter into any transaction in breach of or otherwise violate this Section 9.B., Carrierfy shall be entitled to receive from you, as liquidated damages and not as a penalty, an amount equal to the amount of fees or commissions that Carrierfy would have realized in such transactions, had you not violated the restrictions under this Section 9.B. You acknowledge that it would be difficult or impossible to accurately calculate actual damages caused by a breach of this Section 9.B. and agree that the liquidated damages specified above constitute a reasonable approximation of such damages.
A. You hereby agree to indemnify, defend, and hold harmless Carrierfy, its affiliated companies, and its and their predecessors, successors, and assigns, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of your actual or alleged breach of these Terms, any content you provide through the Services, your use or misuse of the Services, your relationship with any other broker, shipper, carrier, or other user of the Services, your provision of services to a shipper or your receipt of services from a carrier, and any freight you receive, provide, transport or deliver. However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law.
11. Binding ArbitrationPurpose.
A. Purpose. Without limiting your waiver and release in Section 7 above, any and all Disputes (as defined below) involving you and Carrierfy will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 11 (collectively, the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in these Terms, this Section 11 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
B. Definitions. The term “Dispute” means any dispute, claim or controversy related to the Services, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before these Terms or any prior agreement; (3) claims that arise after the expiration or termination of these Terms; (4) any determination of the scope or applicability of this Arbitration Provision; and (5) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, “Carrierfy” means Carrierfy and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, contractors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Services.
C. Initiation of Arbitration Proceeding/Selection of Arbitrator. The arbitration shall be administered by JAMS. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Website, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Carrierfy by mail to 230 Park Avenue, New York, NY 10169.
D. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Carrierfy may bring an individual action in a small claims court in the area where you access the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
E. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Carrierfy about your Dispute. You can obtain the JAMS Rules from JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these Terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Carrierfy agree otherwise, any arbitration hearing will take place in New York, NY. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
F. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON ANY BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
G. Arbitration Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the JAMS’s fees and costs will be governed by the JAMS Rules. If your claims seek less than $75,000 in the aggregate, the payment of the JAMS’s fees and costs will be Carrierfy’s responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and you shall reimburse Carrierfy for all fees and costs that were your obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Carrierfy will pay all fees and costs that it is required by law to pay.
H. Severability and Waiver of Jury Trial. If any part of subsection F. of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable and the Dispute will be decided by the federal and state courts in and for New York, NY. WHETHER IN COURT OR IN ARBITRATION, YOU AND CARRIERFY AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY APLICABLE LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
I. Continuation. This Arbitration Provision will survive the termination or expiration of these Terms.
12. Intellectual Property Protection
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so. If you are a copyright owner or its agent and believe that any content residing on or accessible through the Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
- Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
- The specific URLs of material that we have removed or to which we have disabled access.
- Your name, address, telephone number, and email address.
- A statement that you consent to the jurisdiction of U.S. District Court for Eastern District of New York, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
- The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Your signature.
Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Services.
The contact information for our Designated Agent is:
Attention: Copyright Agent
230 Park Avenue
New York, NY 10169
Email: firstname.lastname@example.org If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at email@example.com. We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of Carrierfy or others, and/or to remove, delete, edit or disable access to such person’s content. YOU AGREE THAT CARRIERFY HAS NO LIABILITY FOR ANY ACTION TAKEN UNDER THIS SECTION 12
13. About these Terms
These Terms, including the documents and additional terms referenced herein, contains the entire agreement between you and us regarding the Services and your use thereof, and supersedes all prior negotiations and agreements between us and you regarding the same. These Terms are binding on us and you and your successors and assigns. We may modify these Terms or any additional terms that apply to the Services for any reason; for example, to reflect changes to the law or changes to our Services. You should look at the Terms regularly and the “Last Updated” date at the beginning of these Terms. We’ll use reasonable efforts to give you notice of these modifications, such as posting notice of modifications to these Terms on this web page, through the Services, or via email. By continuing to use the Services after we make these modifications, you agree that you will be subject to the modified Terms. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.
If there is a conflict between these Terms and any additional terms for the Services, the additional terms will control to the extent necessary to resolve that conflict. If you are using these Services as a shipper or a broker and you previously entered into a ”Carrierfy Pilot Agreement” that is in effect as of the time you first accept these Terms, then these Terms shall supersede and replace such other agreement, and such other agreement is hereby terminated; provided that, your payment obligations under such agreement shall survive, together with any other provisions intended to survive such termination as provided in such agreement.
We are independent contractors with each other. Your use of the Services does not create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between us.
These Terms control the relationship between Carrierfyand you. They do not create any third-party beneficiary rights (except in the limited case of Section 10). If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of the United States and the State of New York, excluding New York’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services.
You may not assign or delegate your rights or obligations relating to these terms or your account for the Services without our prior written consent. We may assign these terms or assign or delegate any of our rights or obligations at any time.
For information about how to contact Carrierfy, please visit our contact page.