The Participant must read, agree with and accept all of the terms and
conditions contained in this Terms and Conditions User Agreement (the
"Agreement"), which include those terms and conditions expressly set out below
and those incorporated by reference before you may become a Participant in the
Network. Company may amend this Agreement at any time by posting the amended
terms on the Network and/or providing notice to Participants, and all amended
terms shall automatically be effective thirty (30) days after they are
initially posted on the Network.
Description
of Service
The Carrier Alliance Network, hereinafter called
'CAN' or 'Network', is solely an Internet load/power sharing facilitating
service offered by Company to its customers.
Definition
of Terms
Company.
The word Company means TMW Systems, Inc., an Ohio corporation and its
successors and assigns.
Participants.
Participants are trucking or logistic companies that have agreed to the terms
and conditions outlined herein, have agreed to participate in the Network and
have proper operating authority from all applicable government agencies to
provide the loads or power offered.
Offer.
An 'Offer' is the transmission to the Network of either a load or power that a
Participant wishes to submit for consideration by other Participants.
Match.
A 'Match' is an agreement entered into solely between two or more Participants
to actually move a load or utilize power.
CAN;
Network. The word CAN or Network in this document is understood to mean
software and services offered by Company which facilitates the exchange of
loads and power between Participants. The Network is NOT a freight forwarder,
broker or common carrier and will not be responsible for arranging any or all
of the transportation, legal compliance, storage, packing, insurance or loading
of goods. The Network acts as a venue allowing Participants to offer loads and
power, and to complete a Match at anytime, from anywhere. Company is not
involved in the actual transaction between the Participants and Company has no
control over the quality, safety or legality of the items contained in the
Offer or Match, the truth or accuracy of the listings in the Offer or Match, or
the ability of Participants to complete the terms of an Offer or a Match.
Company cannot ensure that Participants will complete an Offer or Match and,
consequently, Company does not transfer legal ownership of items between
Participants.
Terms
of Use.
Without limiting other remedies, we may limit your
activity, immediately remove your bids or item listings, warn our community of
your actions, issue a warning, temporarily suspend, indefinitely suspend or
terminate your membership and refuse to provide our services to you if: (a) you
breach this Agreement or the documents it incorporates by reference; (b) we are
unable to verify or authenticate any information you provide to us; or (c) we
believe that your actions may cause financial loss or legal liability for you,
our users or us.
Fees.
Fee
Acknowledgement. Participants understand that there are fees associated
with the use of the Network chargeable to Participants and the fees are set
forth on Exhibit "1" of the signed agreements they have executed to participate
in the Network and incorporated herein. All fees are stated in US Dollars and
are payable in US Dollars. All fees associated with the Network are subject to
change, in the sole discretion of Company, and Company will provide notice of
any changed fees to Participant.
Initial
Set-up Fee. Participants understand that Company charges a one-time fee
for the set-up and training related to the delivery of software for execution
on Participant's computer and for access to the Network via the internet
hosting service. Company will bill Participants for setup and fees and
Participants agrees to pay such bill in a manner consistent with the terms set
forth on the bill.
Fees
for Offer and Match. The Company charges a fee for an Offer and a
separate fee for a Match and Participant agrees to pay these fees in a timely
manner as outlined on the invoice provided to Participant by Company, or
consistent with prior business methods of Company.
Avoidance
of Fees. Participant further agrees and covenants that Participant will
not use any other means to complete a Match, identified initially on the
Network as an Offer, other than pursuant to the procedures set forth on the
Network including the payment to Company of the fees associated with the Match.
In the event Participant takes
such action, Participant understands it will remain liable for all appropriate
fees that would be due for the service provided by the Network and Company
shall have the right to terminate Participants use of the Network.
Wavier of Fee until December 31,
2004. As an inducement for
Participant to use the Network, Company shall waive all fees
for an Offer and a Match until December 31, 2004; provided
Participant executed this Agreement on or before September 15,
2004.
Participant
Representations and Warranties.
Participants
hereby represents and warrant that, as of the date of execution of this
Agreement, and continuously with each use of the Network (a) that Participant
has the requisite legal authority to make an Offer; (b) that Participant has
the requisite legal authority to complete a Match and bind Participant to the
terms of the Match, which constitutes a legally binding agreement between the
two Participants; (c) that Participant is in compliance with all applicable
international, federal, state and local laws and regulations and has the
ability to make the Offer and complete a Match; and (d) that Participant has
all necessary insurance coverage, safety ratings and similar items required
under applicable law.
Indemnification
and Release of Liability
Participant recognizes that
the Network is providing a forum to facilitate transportation transactions and
shall defend, indemnify, and hold harmless, Company from and against any loss,
liability, damages, claims, fines, costs or expenses, including reasonable
attorneys' fees, arising from or relating to Participant's operations for
shipments awarded through the Network or breach or violation of any of the
terms herein, including but not limited to: (i) All losses, damages, expenses
(including reasonable attorneys' fees and costs), actions and claims for injury
to or death of persons and damage to property arising out of or in connection
with the loading, handling, transportation, unloading or delivery of any
shipments pursuant to these terms; (ii) All losses, damages, or expenses
(including reasonable attorneys' fees and costs) incurred by Company from any
failure by Participant to comply with these terms; or (iii) All acts performed
by Participant, its agents, independent contractors, employees or helpers
arising out of or under these terms, including but not limited to criminal
acts, gross negligence, and intentional or negligent conduct, in violation of
any federal, state or local governmental law, rule or regulation.
Because the Network is a venue, in the event that a
Participant has a dispute with another Participant, Participant hereby releases
Company and our officers, directors, agents, subsidiaries, joint ventures and
employees from claims, demands and damages (actual and consequential) of every
kind and nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way connected with such disputes, use of
the Network or this Agreement.
The Network shall not be liable to any Participant,
owner or third party for loss or damage to any goods, nor for any such loss or
damage arising from any noncompliance with the Participant's instructions, or
for any failure to perform whether wholly or in part their obligations. It is
the responsibility of Participants to arrange all aspects of the load/power
Match. In no circumstances whatsoever shall the Network be liable to the
participant or shipper for any loss, damage, cost or expenses arising out of
any person(s) relaying advice or information.
Warranties
Although Company will make every effort to maintain
constant access to the Network, we do not guarantee the continuous,
uninterrupted access to this service and the Company does not warrant or
guarantee the accuracy of any content provided by any Participant of this
service.
COMPANY, OUR SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES AND OUR SUPPLIERS PROVIDE THE NETWORK AND ITS SERVICES "AS IS" AND
WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY
DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the
disclaimer of implied warranties, so the foregoing disclaimer may not apply to
you. This warranty gives you specific legal rights and you may also have other
legal rights that vary from state to state.
Limitation
of Liability
The Network and Company has no responsibility for
the fitness of any Participants, and does not endorse or recommend (i) any
Participants whose services maybe displayed or referred to by the Network; or
(ii) the availability or suitability of any services by Participants.
IN NO EVENT SHALL COMPANY, OUR SUBSIDIARIES,
OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR
ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE NETWORK, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING,
INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF OUR
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY
THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT
OF FEES YOU PAY TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING
RISE TO LIABILITY, AND (B) ONE HUNDRED DOLLARS ($100.00). Some States do not
allow the exclusion or limitation of incidental or consequential damages, so
the above limitation or exclusion may not apply to you.
Termination.
Either party may terminate this Agreement at any
time upon one (1) weeks advance written notice.
Termination of this Agreement does not relieve Participant of its liabilities or fees associated with its use of
the Network prior to the termination of this Agreement. Should
the Participant decide to re-instate this service, Participant shall pay a
re-instatement fee not to exceed the current initial set up fee.
General.
Choice
of Law; Venue. All questions or disputes concerning the validity,
operation, interpretation, negotiation and construction of this Agreement shall
be governed by the laws of the state of Ohio in the venue of Cuyahoga County,
Ohio.
Compliance
with Laws. Participant shall comply with all applicable domestic and
international laws, statutes, ordinances and regulations regarding the use of
the Network by Participant and the bidding, listing, purchase, solicitation of
Offers, acceptance of a Match and transfer of loads and power.
No
Partnership. The Company and Participant are re independent
contractors, and no agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship is intended or created by this Agreement.
No
Guaranty of Service. The Company does not guarantee continuous,
uninterrupted or secure access to the Network, and operation of the Network may
be interfered with by numerous factors outside of our control.
Severability.
The provisions of this Agreement are severable. If any section, or part
thereof, of this Agreement, is held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions shall remain in effect and
such invalid or unenforceable provisions shall be enforced to the fullest
extent permitted by law.
Headings.
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section.
Non-Waiver.
The failure to act by the Company with respect to a breach or other action by a
Participant or other person does not waive the right of Company to act with
respect to subsequent or similar actions or breaches.
Non-Assignable
by Participant. Neither this agreement nor the license granted
hereunder may be assigned (by operation of law or otherwise), sublicensed or
otherwise transferred in any manner by licensee without the prior written
consent of Company, and any such assignment shall be void and of no effect.
This agreement will be binding upon a inure to the benefit of the parties and
their successors and permitted assigns.
Assignable
by Company. Notwithstanding anything contained herein to the contrary,
Company may assign all of its rights and interest in this Agreement, other
agreement entered into with other Participants and the right, title and
interest in the Network to another person or entity.
Promotion. As
a member of the Network, Participant authorizes TMW to include its name on the
active member list.
This list may be viewed by other Participants. Participant also
acknowledges that Company may use Participant's company name in conjunction
with Network emails, updates and/or promotional materials.
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