Welcome to TruckITApp.com. These Terms of Service (“Terms”) govern your access and use of Truck IT (“Truck IT”, “we”, or “our”) websites, services, and applications (collectively, the “Services”). Your access to and use of the Services is conditioned upon your acceptance of these Terms. These Terms apply to all users, account holders, visitors and others who access or use the Services. By accessing or using the Services you agree to be bound by these Terms.
If you are using the Services on behalf of an organization or entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these Terms. In that case, “you” and “your” refers to you and that Organization.
Your Truck IT Account
To create or use a Truck IT account, you must be over 18 years of age. You must provide us true, accurate, current and complete information about yourself when you create your Truck IT account. If the information you provide is untrue, inaccurate, incomplete or outdated, or we have reasonable grounds to suspect it is, we reserve the right to suspend or terminate the Services. You may only have one registered Truck IT account at any given time. If we determine that you have multiple Truck IT accounts or are otherwise not in compliance with these Terms, we may close your Truck IT accounts and delete all data in the accounts.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password, whether your password is with Truck IT or a third-party service. You agree not to disclose your password to any third party. Truck IT cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You must notify Truck IT immediately upon becoming aware of any breach of security or unauthorized use of your Truck IT account.
Subscriptions to Services
You agree not to misuse the Services. For example, you agree not to, directly or indirectly do or attempt to do any of the following:
You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services and your Content, including copyright laws. We reserve the right to immediately suspend or terminate your account without further notice in the event that, in our sole and absolute judgment, you violate these Terms, or abuse the use of our Services.
You agree to be responsible for and to pay any applicable sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this license, or the use or possession of Services, or any software or other product provided under these Terms, excluding any taxes based on net income payable by Truck IT. If you are exempt from paying any sales, use or other taxes, you must provide Truck IT with appropriate evidence of tax exemption for all relevant jurisdictions.
Use of Content
Truck IT does not claim ownership of any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “Content”) that you post on or through the Services. Instead, you hereby grant to Truck IT a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, copy, store, modify, distribute, publish, and process the Content that you provide through the Services solely for purposes of providing or improving the Services (including vendor order fulfillment services). None of your Content will be subject to any obligation of confidentiality on the part of Truck IT, and Truck IT will not be liable for any use or disclosure of any Content you provide.
You represent and warrant that: (i) you own the Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of your Content on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Services; and (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction.
While Truck IT does not and cannot review all content provided to it, and is not responsible for such content, Truck IT reserves the right to delete, edit or rearrange content that it, in its sole discretion, deems objectionable, in violation of copyright or trademark laws or otherwise unacceptable.
Truck IT Property and Intellectual Property
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Truck IT and its licensors. The Services are protected by copyright, trademark, and other laws. TruckITApp.com, Truck IT, and the Truck IT logo and other marks are trademarks of Truck IT. No portion of the Services may be reprinted, republished, modified, or distributed in any form without the express written permission of Truck IT. Any feedback, comments, or suggestions you may provide regarding Truck IT, or the Service is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
Your Use of Truck IT Software
Truck IT provides certain downloadable client software applications (the “Software”) for use solely in connection with the Services. This Software is updated automatically and, if such Software is designed for use on a mobile device, then a compatible mobile device is required for use. The license being granted to you hereunder does not constitute a sale of the Software or any copy thereof, and as between Truck IT and you, Truck IT retains all right, title, and interest in the Software.
Term and Termination
These Terms will continue to apply to you until terminated by either you or Truck IT. Truck IT may terminate the Terms or suspend your access to the Services at any time, including in the event of your actual or suspected unauthorized use of the Services or non-compliance with the Terms. Upon termination, any Content you have stored on the Services may no longer be retrieved. If you or Truck IT terminate the Terms, or if Truck IT suspends your access to the Services, you agree that Truck IT shall have no liability or responsibility to you and Truck IT will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
No Agency; Third Party Beneficiary
Nothing in this agreement is intended to, or should be construed, to create a partnership, agency, joint venture, or employment relationship between Truck IT and you. Nothing expressed or mentioned in or implied from these Terms are intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms.
The Services may provide links to third-party sites or provide content from third party sites that are not owned or controlled by Truck IT. These Terms do not apply to any third party websites or their practices. It is your responsibility to become familiar with each third party site's privacy and other policies and Terms, and to contact that site's webmaster or site administrator with any concerns. You agree that Truck IT is not responsible for any loss or damage in your dealings with such third party sites.
You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
You agree to indemnify, defend, and hold Truck IT and its licensees, licensors, and third party service providers (and each of their respective employees, directors, agents, affiliates and representatives) harmless from and against any and all losses, liabilities, damages, claims, costs, losses, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees)
arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Truck IT's use of your Content; or (iv) your violation of the rights of any third party.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TRUCK IT AND ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH OUR SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE.
Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRUCK IT, ITS SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND EACH OF THEIR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, OR LOSS OF CONFIDENTIAL INFORMATION, OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL TRUCK IT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR TRUCK IT ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
THE SERVICES, INCLUDING ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, TRUCK IT AND ITS SUBSIDIARIES, AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRUCK IT, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. TRUCK IT, ITS SERVICE PROVIDERS, AGENTS, SUPPLIERS, AND LICENSORS (AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) SHALL NOT BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY TRUCK IT IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TRUCK IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
No party shall be liable for any default or delay in the performance of its obligations under these Terms if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.
These Terms shall be governed by Georgia law, without regard to to its choice of law or conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Disputes and Arbitration
The terms of this section will apply to all disputes that may arise out of, are connected with, or relate to these Term or the Services, subject only to the following exceptions: (i) if Truck IT reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to Truck IT or any third party, or have misappropriated, misused, or infringed upon Truck IT’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, we may seek injunctive and other appropriate relief in any court of competent jurisdiction, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims; or (ii) any dispute may, at the option of the claiming party, be resolved in small claims court in Atlanta, Georgia, provided that all claims by all parties in the dispute (1) fall within the jurisdiction of the small claims court, and (2) were unsuccessfully resolved through the informal resolution process set forth below. In no event will the terms of this section limit Truck IT's ability to investigate complaints or reported violations of these Terms, or to take any action we deem necessary and appropriate to mitigate actions against Truck IT, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
You agree that prior to filing any claim against Truck IT, you will first contact Truck IT and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). You will allow Truck IT thirty (30) days from the date of filing your written description within which to resolve the dispute to your reasonable satisfaction.
Except as otherwise set forth in this section, if Truck IT does not resolve the dispute through good faith negotiations under this informal process, then either party may bring a formal claim, which claim shall be resolved through final and binding arbitration administered by the American Arbitration Association (“AAA”) in the city of Atlanta, Georgia under the AAA’s commercial arbitration rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The timeline for disputes, unless otherwise required by applicable law, must be commenced within one year after the cause of action accrues. ALL CLAIMS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TRUCK IT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
These Terms, together with any amendments and any additional agreements you may enter into with Truck IT, constitute the entire agreement between the parties with respect to the Service, and supersede any previous agreements and understandings with respect to the subject matter of these Terms. These terms are not assignable.
Right to Amend
Truck IT may modify these Terms from time to time. If we make material changes to these Terms we will notify you by email or through a message posted on the Services. You agree that such modified Terms will be effective thirty (30) days after our notice to you, except for changes that relate to new features or for legal reasons, which will become effective immediately. Your continued use of the Services after our provision of notice to you will constitute your affirmative acceptance to the modified Terms. If you do not agree to, or cannot comply with, the Terms as amended, you must stop using the Services.
The parties intend every provision of these Terms to be severable. If any part of these Terms is not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.
AleterVine’s failure to enforce any provision of these Terms shall not be deemed a waiver of its right to enforce its rights at a later time.
If to Truck IT: Except as otherwise provided herein, notice shall be made by registered or certified mail, Truck IT, LLC, 8745 Creekstone Place, Gainsville, GA 30506, Attn: President and Legal Department.
If to You: Truck IT may give notice by means of a general notice on the Services, electronic mail to your email address in your Truck IT account, telephone or text message to any phone number provided in connection with your Truck IT account, or by written communication sent by first class, registered, or certified mail, to any address connected with your Truck IT account.
HAULER LICENSE AGREEMENT
PLEASE READ THE FOLLOWING CAREFULLY. THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND TRUCK IT, LLC (the “COMPANY”) WITH RESPECT TO THIS LICENSE AGREEMENT, SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THIS AGREEMENT, AND GOVERNS ALL PAST, CURRENT AND FUTURE USE OF THE SERVICE REFERRED TO IN THIS AGREEMENT.
BY “CLICKING” ON THE “I AGREE” BUTTON AND ACCESSING, INSTALLING, OR USING THE SERVICE, YOU INDICATE YOUR ACCEPTANCE OF AND AGREEMENT TO THE FOLLOWING AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT “CLICK” ON THE “I AGREE” BUTTON BELOW, BUT “CLICK” ON THE “I DISAGREE” BUTTON.
Section 1. License Grant and Authority. Subject to Sections 2 through 30 hereof, the Company grants to the specific authorized personnel of the business using the Service pursuant to this License (such business and authorized personnel referred to collectively as “You” or “Hauler”) a personal, non-transferable and non-exclusive license to use the Truck IT™ service linked to this Agreement (“Service”) only for use by You in the operation of the Your business. The term “Service” includes associated on-line or electronic documentation, as well as any and all updates and supplements provided by the Company. You agree not to use the Service for any illegal purpose, or for any purpose which may infringe on the property rights of others. You represent and warrant that You have the proper power and authority to enter into this Agreement and to act on behalf of the licensee business. You understand that the Service has been designed solely for use in the English (U.S.) language and that the Company makes no representations or warranties that the Service will be adapted for use in any other language or format, although the Company reserves the right to do so in its sole discretion.
Section 2. Description of Truck IT™. The Truck IT™ service is designed to help You enhance Your response times, staffing, and analysis of delivery needs and capabilities with respect to requests for construction related local haul bulk material trucking services You receive from time to time through the Service by providing a tool to quickly track, locate and communicate with drivers, organize and prioritize outstanding requests and needs for trucks, and track pertinent data concerning all requests for services You may receive. In particular, Truck IT™ enables You to locate and communicate with those in need of local haul bulk material trucks, all in connection with the objective of increasing the efficiency of matching dump truck needs and capabilities with the availability of dump truck hauling services. The Company is acting strictly as a facilitator of services and has no ownership or control over Your trucks or their availability or the descriptions of services or deadlines provided by any prospective customer seeking the services of a truck provider. Your use of the Truck IT™ service entails the use of hardware, software and internet access. You agree that the Company is not responsible for any hardware (other than properly leased hardware of the Company), software (other than properly licensed software of the Company), or internet access or availability issues, and You agree to hold the Company harmless for any such issues. The Company does not provide internet access and You are responsible for all fees relating to telephone and internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining internet connectivity (other than that included as part of leased hardware of the Company).
Section 3. Relationship Between the Parties. Hauler understands and agrees that the parties hereto are independent contractors and that no partnership, joint venture, employment, or other relationship exists between Truck IT and Hauler that might create any responsibilities or liabilities on the part of Truck IT apart from those specifically set forth in this Agreement.
Section 4. Pricing. Hauler warrants and represents that prices quoted to Truck IT and charged pursuant to transactions entered into through the terms set forth herein are in accordance with all applicable laws and regulations of all governmental agencies. Hauler warrants that the prices quoted for the trucks provided hereunder are not less favorable than those currently extended to any other customer for the same or similar equipment in similar quantities. Hauler warrants that prices quoted to Truck IT shall be complete, and no additional charges of any type shall be added without Truck IT’s express written consent.
Section 5. Interruption of Service. The Company reserves the right to interrupt the Service from time to time on a regularly scheduled basis or otherwise, with or without notice, in order to perform necessary maintenance. You agree that the Company will not be liable for any interruption of the Service, or from any delay or failure to perform for any reason. You acknowledge that the Service may also be interrupted for reasons beyond the control of the Company, and the Company cannot make any assurances that You will be able to use the Service whenever You desire to do so. The Company has the right to modify or eliminate any aspect of the Service at any time in its sole discretion, without any prior notice, and shall not be obligated to refund any portion of any fees charged by reason of any interruption of the Service.
Section 6. Intellectual Property Rights. The Service was developed by and is the sole property and constitutes confidential and proprietary information of the Company. You are being granted a license only under this Agreement. You agree to take reasonable steps to protect the confidentiality of the Service. You shall not disclose or transfer Your passwords, Your interfaces to the Service, or any other method of accessing the Service to any third party or to any other computer. You understand that the use of any feature contained in the Service or internet browser enabling passwords to be “remembered” or entered automatically may create breaches in password security (and, consequently, security of Your data), and You assume responsibility for and You understand and agree to take reasonably necessary steps to prevent unauthorized access or use of Your data. You agree not to decompile, modify, reproduce, rent, lease, or otherwise dispose of or reverse engineer the software code utilized by the Service, and You agree not to duplicate such software. You agree to use the Service only in connection with the operation of Your business, and You shall not use, permit the use of, or attempt to use the Service in connection with the operation of any other business enterprise. You shall not gain access, or attempt to gain access, by any means, to any the Company computer system or database, other than systems that the Company may grant You access to in the future, and you shall not gain access or attempt to gain access to any Company computer system of database through any means other than software provided by the Company in any event.
Section 7. Technical Support. The Company will provide technical support in connection with Your use of the Service, provided that You pay the required fees in advance. Your use of technical support services is governed by the policies and procedures described in the user manual, on-line documentation, and/or other materials provided by the Company relating to the Service. You understand that the Company may use any and all technical information provided by You for its own internal purposes, including product support and development. The Company will not use or make available such technical information in any form that personally identifies You.
Section 8. Truck IT Warranties and Limitations of Damages. THE SERVICE IS LICENSED "AS IS." THERE ARE NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY MAKES NO WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR CONCERNING THE SECURITY, RELIABILITY, AND TIMELINESS OF THE SERVICE. THE COMPANY AND ITS AGENTS SHALL IN NO EVENT BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, MULTIPLE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST SAVINGS, OR OTHER SUCH DAMAGES ARISING OUT OF THE USE OF (OR IMPROPER USE OF), OR INABILITY TO USE, THE SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PERSON OR ENTITY RELATED THERETO. THIS LIMITATION SHALL ALSO APPLY TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH THE SERVICE.
Section 9. Hauler Warranties. Hauler expressly represents and warrants that all dump trucks provided pursuant to transactions entered into with Truck IT will be operable, safe, free from defects in material or workmanship, and suitable for the use intended whether express or implied. Hauler expressly warrants that it has in place valid and current registrations with USDOT and any other regulatory agency or concern as required by law. All warranties shall run to Truck IT and its customers, successors and assigns. Hauler agrees to replace or correct defects in any trucks or other equipment not conforming to the foregoing warranty promptly, without expense to Truck IT, when notified of such nonconformity. In the event of failure of Hauler to correct defects in or replace nonconforming trucks or equipment promptly, Truck IT may at its sole discretion and without further notice or obligation to Hauler make arrangements to provide replacement trucks or equipment from alternative providers, withhold any amounts otherwise due to Hauler, and charge Hauler for any additional cost incurred by Truck IT or its customers in doing so.
Section 10. Performance. Time is of the essence. Deliveries of trucks or equipment and rendering of services facilitated hereunder are to be made both in quantities and at the times specified by Truck IT. Truck IT shall have the right without liability in addition to its other rights and remedies (a) to cancel any order from Hauler; (b) to procure substitute trucks, equipment, or services elsewhere and charge Hauler with any loss incurred; (c) remove the Hauler from Truck IT system for substandard performance; and/or (d) fine Haulers up to $25/ day/ truck if delivery of trucks or equipment is not made in accordance with such schedules for quantities or time periods.
Section 11. Changes. No change in the terms of this agreement shall be binding upon Truck IT unless in writing from and signed by Truck IT’s authorized agent. Truck IT shall have the right at any time to make changes in time and place of delivery as to any trucks or equipment covered by any transaction entered into under this Agreement.
Section 12. Payment. Hauler acknowledges and agrees that any and all payments from Truck IT are advances expressly conditioned on Truck IT actually receiving payment from its customer. Hauler further acknowledges that it relies on the credit and financial capacity of Truck IT’s customer, not Truck IT, for payment to Hauler in connection with this or any purchase order. Truck IT will pay Hauler for each transaction within seven (7) days of the last day on which Hauler’s trucks or equipment were provided to Truck IT’s customer. As a condition precedent to Hauler’s right to receive payment, Hauler agrees to assign all rights to assert and file a materialman’s or mechanic’s lien against Truck IT’s customer or its property in connection with a particular project, in such form as Truck IT may require. Hauler covenants and agrees that any driver representing Hauler has the authority to execute and deliver such assignment as well as any statutory lien or bond waivers as may be required by Truck IT or its customer.
Section 13. Indemnification. Hauler agrees to defend, indemnify and hold Truck IT harmless and its parent and related companies, affiliates, customers, agents and vendors from and against any and all damages, claims or liabilities and expenses (including attorneys’ fees) arising out of or resulting in any way from the operation of any trucks or equipment furnished pursuant to transactions hereunder, or from any act or omission of Hauler, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Hauler.
Section 14. Insurance. Hauler shall maintain at all times as applicable, workmen's compensation insurance with applicable statutory limits for all drivers who are employees of Hauler, employers liability insurance for not less than $500,000, and comprehensive public and commercial general liability insurance including "XCU", products-completed operations, automobile (covering all owned, non-owned and hired vehicles), contractual, bodily injury and property damage liability coverages with limits not less than $1,000,000 per occurrence of loss or damage and $2,000,000 combined single limit annual aggregate. Hauler shall furnish an insurance carrier certificate and/or state issued certificate evidencing the above coverages upon written request by Truck IT. Insurance carrier certificates must be endorsed to provide that Truck IT shall be notified thirty (30) days prior to any substantial modification or termination of the subject policy.
Section 15. Force Majeure. Truck IT may order Hauler to delay delivery of any truck or equipment to a customer’s site under circumstances occasioned by causes beyond its control, and Truck IT will not be liable for any such delay.
Section 16. Remedies. The remedies herein reserved shall be cumulative and additional to any other or further remedies provided in law or equity.
Section 17. Term. This Agreement and the license hereunder shall be effective upon the date You access the Service and shall continue indefinitely thereafter unless otherwise terminated. Upon termination of this Agreement for any reason, the Company shall be authorized to immediately prevent You from having any further access to the Service. Sections 3, 6, 7, 11, 12, 13, 15, 16, 21, 23, 24, 25, 27, 28, 29, & 30 shall survive termination of this Agreement.
Section 18. Termination for Convenience. Truck IT reserves the right to terminate any order or transaction entered into under this Agreement for its sole convenience. In the event of such termination, Hauler shall immediately take any steps necessary to cause its drivers and trucks and equipment to refrain from being delivered or appearing on the site of Truck IT’s customer to whom such transaction relates. Hauler shall be paid for its incurred costs only and will not be entitled, under any circumstance, to profit or consequential damages.
Section 19. Termination for Cause. Truck IT may also terminate any order or transaction entered into under this Agreement for cause in the event of any default by the Hauler or if the Hauler fails to comply with any of this Agreement. Late deliveries, deliveries of trucks or equipment which are defective or which do not conform to Truck IT’s customer’s requirements, and failure to provide Truck IT, upon request, with reasonable assurances of future performance shall all be causes allowing Truck IT to terminate this Agreement for cause. In the event of termination for cause, Truck IT shall not be liable to Hauler for any amount, and Hauler shall be liable to Truck IT for any and all damages sustained by reason of the default which gave rise to the termination. In the event any termination by Truck IT is determined not to have been for cause, then any such termination shall be deemed to have been a termination for convenience and Hauler’s sole and exclusive remedies for said termination are set forth in the Termination for Convenience paragraph herein.
Section 20. Government Regulations. In furnishing trucks or equipment covered by this Agreement, Hauler agrees to comply with the provisions of all applicable federal, state and local laws, rules, regulations, ordinances and orders.
Section 21. Setoff. All claims for money due or to become due from Truck IT shall be subject to deduction or setoff by the Truck IT by reason of any counterclaim arising out of this or any other transaction with Hauler.
Section 22. Cancellation. Truck IT reserves the right to cancel in whole or in part any transaction requiring the delivery by Hauler of trucks or equipment pursuant to this Agreement if: the Hauler fails to fulfill the terms of this Agreement, as determined by Truck IT; the Hauler becomes insolvent; files a voluntary petition in bankruptcy, or an involuntary petition is filed to have Hauler declared bankrupt and is not vacated within thirty (30) days from the date of filing; a Receiver or Trustee for Hauler is appointed and such appointment is not vacated within thirty (30) days of the date thereof; Hauler executes an assignment for benefit of creditors; or if Hauler breaches any of the terms hereof including the warranties of Hauler.
Section 23. Applicable Law. This Agreement, as well as any transactions entered into in accordance with this Agreement, shall be governed by the laws of the State of Georgia, without giving effect to the conflict of laws provisions of the laws of the State of Georgia.
Section 24. Arbitration. The parties shall settle any controversy arising out of this Agreement by arbitration in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within twenty (20) days after the filing and service of the demand for arbitration, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The non-prevailing party shall pay all costs of arbitration and the attorneys’ fees of the prevailing party, and the parties shall request the arbitrator to include such provisions in the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction.
Section 25. Waiver. The waiver by Truck IT of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision on this Agreement or on future agreements.
Section 26. Assignments and Subcontracting. No transaction entered into pursuant to this Agreement may be assigned or subcontracted by Hauler without prior written approval of Truck IT. Approved assignment or subcontracting may only be done to a Truck IT approved Hauler through the Truck IT system.
Section 27. Prompt Pay Act Not Applicable. The Georgia Prompt Pay Act (O.C.G.A. § 13-11-1 et seq.) and any other applicable statute requirement prompt payment shall not apply in any respect to this Agreement.
Section 28. Limitation of Truck IT’s Liability – Statute of Limitations. In no event shall Truck IT be liable for anticipated profits or for incidental or consequential damages. Truck IT’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Agreement or from any transaction entered into pursuant thereto shall in no case exceed the price associated with the delivery and use of the trucks or equipment under such transaction, which gives rise to the claim. Truck IT shall not be liable for fines or penalties of any description. Any action resulting from any breach on part of Truck IT as to the goods or services delivered hereunder must be commenced within one (1) year after the cause of action has accrued.
Section 29. Indemnification by You. You will, at Your sole cost and expense, indemnify and hold the Company and its officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or related to Your violation of the terms of this Agreement, or the violation of the terms of this Agreement by any person who has access to the Service through You, or any Content displayed through Your use of the Service.
Section 30. Entire Agreement. This Agreement and Hardware Agreement constitute the entire agreement between the parties. No changes are binding upon Truck IT unless they are in writing and signed by an authorized representative of Truck IT.