EFFECTIVE DATE OF THIS VERSION: 02/27/2015
PLEASE READ THIS TERMS AND CONDITIONS OF USE AGREEMENT (“THE AGREEMENT”) CAREFULLY PRIOR TO USING THE WEB SITE. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE CONTENT, INFORMATION AND SERVICES PROVIDED THROUGH THE WEB SITE (COLLECTIVELY THE “WEB SITE”).
THE WEB SITE IS AVAILABLE FOR YOUR USE ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS AND CONDITIONS OF USE SET FORTH HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF USE, DO NOT ACCESS OR USE THE WEBSITE. BY ACCESSING, BROWSING AND/OR USING THE WEB SITE, YOU AND THE ENTITY YOU ARE REPRESENTING (“YOU” OR “YOUR”) SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION, TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE. THESE TERMS AND CONDITIONS OF USE MAY BE UPDATED FROM TIME TO TIME WITHOUT PRIOR NOTICE TO YOU. YOU SHOULD, THEREFORE, PERIODICIALLY VISIT THIS PAGE TO DETERMINE THE THEN-CURRENT TERMS AND CONDITIONS OF USE TO WHICH YOU ARE BOUND.
THIS WEB SITE IS PROVIDED BY FREIGHT EXCHANGE OF NORTH AMERICA, LLC (“FX”) AND AVAILABLE ONLY TO ENTITIES AND PERSONS OVER THE AGE OF LEGAL MAJORITY WHO CAN FORM LEGALLY BINDING AGREEMENT(S) UNDER APPLICABLE LAW. IF YOU DO NOT QUALIFY, YOU ARE NOT PERFMITTED TO USE THIS WEB SITE. YOUR ACCESS AND USE OF THE WEB SITE REPRESENTS YOUR WARRANTY TO FX THAT YOU WILL USE THE WEBSITE IN A MANNER CONSISTENT WITH ANY AND ALL APPLICABLE LAWS AND REGULATONS.
1. ACCEPTANCE OF THIS AGREEMENT
This Agreement is between you and all persons you are authorized to represent (and for purposes of this Agreement, “person” includes natural persons and any type of incorporated or unincorporated entity) and FX, and governs your use of the Web Site. This Agreement also provides benefits to FX’s affiliates, service providers, suppliers and sub-contractors (collectively “Affiliates and Providers”).
Each time you use the Web Site you signify your acceptance and agreement, and the acceptance and agreement of all persons you represent, without limitation or qualification, to be bound by this Agreement, and you represent and warrant that you have the legal authority to agree to and accept this Agreement on behalf of yourself and all persons you represent. If you do not agree with each provision of this Agreement, or you are not authorized to agree to and accept this Agreement, you may not use the Web Site.
2. SCOPE OF THIS AGREEMENT
This Agreement is in addition to and supplements any written agreements that you or any persons you represent have with FX or any of its Affiliates and Providers (now or in the future) concerning your dealings with FX or Affiliates and Providers generally.
This Agreement and all other agreements that you or any persons you represent have with FX or Affiliates and Providers (now or in the future) together constitute the entire agreement regarding your access to and use of the Web Site, and supersede all previous agreements (written, oral or otherwise) regarding your access to and use of the Web Site. In the event of any inconsistency or conflict between the provisions of this Agreement and the provisions of any other agreement that you or any persons you represent have with FX or Affiliates and Providers (now or in the future), the provisions of this Agreement shall govern regarding your access to and use of the Web Site.
3. MODIFICATIONS TO THIS AGREEMENT
FX may, in its sole discretion, change, revise, supplement, amend or update this Agreement at any time without notice or liability. You are responsible for reviewing these terms and conditions periodically. Your continued use of the Web site after any changes to this Agreement will mean that you accept those changes. You may not change, revise, supplement, or amend this Agreement in any manner.
4. PERMISSION TO USE THE WEB SITE
The Web Site may be accessed and used only by individuals who have: (a) reached the age of majority in their jurisdiction of residence and can form legally binding contracts under applicable law; and (b) accepted this Agreement. Persons using the Web Site must comply with all applicable laws. FX may in its discretion refuse permission to access and use the Web Site.
5. WEB SITE COMMUNICATIONS
All communications you submit through the Web Site or e-mail must be true, accurate and complete. FX and Affiliates and Providers will rely upon the truth, accuracy and completeness of the communications you submit through the Web Site. If you submit any incorrect or incomplete communications, or if any communications are damaged or distorted during transmission to FX, you and all persons you represent will be liable for any loss, damage or additional costs that you, FX, Affiliates and Providers, or other persons may incur as a result.
You authorize FX and Affiliates and Providers to: (a) accept communications that they receive from you by means of the Web Site or e-mail as if those communications had been given directly by you in writing and signed by you; (b) disclose your communications to any Affiliates and Providers, and FX workers by means of the Web Site, e-mail or other communications; and (c) respond to your communications by means of Internet communications, e-mail or other communications. Communications you send to FX by means of the Web Site or e-mail are not effective unless and until they are processed by the responsible FX representative.
FX may refuse to process any communications sent to FX by means of the Web Site or e-mail, or may reverse the processing of any communications sent to FX by means of the Web Site or e-mail, at any time in FX’s discretion, and without any notice or liability to you or any other person, including, without limitation, if: (a) FX cannot process the communications; (b) the communications violate any provision in this Agreement or any other agreement that you or any other person may have with FX; (c) FX considers that the communications conflict with any other instructions or agreements with you or any person you represent; or (d) there is an operational failure or malfunction in connection with the transmission of the communications.
FX endeavors to provide accurate information through the Web Site. Nevertheless, errors may occur. Accordingly, FX reserves the right to change other information available through the Web Site at any time and from time to time without any notice or liability to you or any other person.
7. NO ADVICE
The Web Site is not intended to be a comprehensive or detailed statement concerning the matters addressed; investment, tax, banking, accounting, legal, or other professional or expert advice or recommendations; or an offer or recommendation to sell or buy any stock, bond or other financial instrument or any product or service. You should seek appropriate, qualified professional advice and recommendations before acting or omitting to act based upon any information provided on or though the Web Site.
8. DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY
FX and Affiliates and Providers do not accept any liability for your use of the Web Site. For that reason, the following provisions apply to your use of the Web Site.
YOUR USE OF THE WEB SITE IS AT YOUR OWN RISK. THE WEB SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, DURABILITY, AVAILABILITY, TIMELINESS, ACCURACY OR COMPLETENESS, ALL OF WHICH ARE HEREBY DISCLAIMED BY FX AND THE AFFILIATES AND PROVIDERS TO THE FULLEST EXTENT PERMITTED BY LAW. THERE WILL NOT BE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, CONFIGURING AND MAINTAINING ALL COMPUTER HARDWARE, SOFTWARE, TELEPHONE SERVICES, AND OTHER EQUIPMENT AND SERVICES NECESSARY FOR YOU TO USE THE WEB SITE.
THE INTERNET IS NOT A SECURE MEDIUM, MAY BE SUBJECT TO INTERRUPTION AND DISRUPTION, AND INADVERTENT OR DELIBERATE BREACHES OF SECURITY AND PRIVACY. THE OPERATION OF THE WEB SITE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND FX’S CONTROL. THE OPERATION OF THE WEB SITE MAY NOT BE CONTINUOUS OR UNINTERRUPTED, SECURE OR PRIVATE.
FX AND THE AFFILIATES AND PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON AS A RESULT OF ANY FAILURE OR REFUSAL BY FX TO GIVE EFFECT TO, OR FOR ANY FAILURE OR DELAY BY FX IN RECEIVING, ACCESSING, PROCESSING OR ACCEPTING, ANY COMMUNICATION SENT TO FX BY MEANS OF THE WEB SITE OR e-mail, OR FOR ANY LOSS OR DAMAGES SUFFERED AS A RESULT OF THE OPERATIONAL FAILURE, MALFUNCTION, INTERRUPTION, CHANGE, AMENDMENT OR WITHDRAWAL OF THE WEB SITE OR e-mail SERVICES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FX AND THE AFFILIATES AND PROVIDERS MAKE NO REPRESENTATION, WARRANTY OR CONDITION THAT: (A) THE WEB SITE WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT AND SOFTWARE; (B) THE WEB SITE WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED; (C) THE WEB SITE WILL MEET YOUR REQUIREMENTS; (D) THE INFORMATION CONTAINED IN THE WEB SITE OR DERIVED FROM THE WEB SITE WILL BE ACCURATE, COMPLETE, SEQUENTIAL, OR TIMELY; (E) CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH THE USE OF THE WEB SITE; (F) THE USE OF THE WEB SITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; OR (G) THE USE OF THE WEB SITE WILL NOT INFRINGE THE RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; AND FX AND THE AFFILIATES AND PROVIDERS DISCLAIM ANY AND ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
B. LIABILITY EXCLUSION
FX AND THE AFFILIATES AND PROVIDERS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF USE, LOSS OF PRODUCTION, LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF MARKETS, ECONOMIC LOSS, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, ARISING FROM, CONNECTED WITH, OR RELATING TO THE USE OF THE WEB SITE BY YOU OR ANY OTHER PERSON, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY FX OR ANY AFFILIATE OR PROVIDER OR ANY PERSON FOR WHOM FX OR AN AFFILIATE OR PROVIDER MAY BE RESPONSIBLE, AND NOTWITHSTANDING THAT FX OR ANY AFFILIATE OR PROVIDER MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED BY YOU OR ANY OTHER PERSON.
The exclusion of certain warranties and the exclusion of certain liabilities are prohibited by legislation in some jurisdictions. Such legislative limitations may apply to you.
C. LIABILITY LIMITATION
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL FX OR ANY OF THE AFFILIATES AND PROVIDERS’ TOTAL LIABILITY TO YOU OR ANY OTHER PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, AND COSTS, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY FX OR ANY AFFILIATE OR PROVIDER OR ANY PERSON FOR WHOM FX OR ANY AFFILIATE OR PROVIDER IS RESPONSIBLE, EXCEED $100 (US) OR THE AMOUNT YOU PAID TO FX FOR THE USE OF THE WEB SITE, WHICHEVER IS LESS.
The limitation of certain liabilities is prohibited by legislation in some jurisdictions. Such legislative limitations may apply to you.
YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE EACH OF FX AND THE AFFILIATES AND PROVIDERS AND ALL OF THEIR RESPECTIVE FRANCHISEES, PARTNERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE WEB SITE.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF FX AND THE AFFILIATES AND PROVIDERS AND ALL OF THEIR RESPECTIVE FRANCHISEES, PARTNERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, OR CONNECTED WITH YOUR USE OF THE WEB SITE OR YOUR BREACH OF THIS AGREEMENT. YOU WILL ASSIST AND COOPERATE AS FULLY AS REASONABLY REQUIRED BY THE INDEMNIFIED PARTIES IN THE DEFENSE OF ANY CLAIM OR DEMAND. ADVICE AND INFORMATION PROVIDED BY FX OR THE AFFILIATES AND PROVIDERS OR THEIR RESPECTIVE REPRESENTATIVES, WHETHER ORAL OR WRITTEN, WILL NOT CREATE ANY REPRESENTATION, WARRANTY OR CONDITION OR VARY OR AMEND THIS AGREEMENT, INCLUDING THE ABOVE DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY PROVISIONS, AND YOU MAY NOT RELY UPON ANY SUCH ADVICE OR INFORMATION.
F. FAIR ALLOCATION OF RISK AND LIABILITY.
YOU ACKNOWLEDGE AND AGREE THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY.
9. OWNERSHIP AND PERMITTED USES OF THE WEB SITE
Copyright © 2014 Freight Exchange of North America. All Rights Reserved. The Web Site and all information (in text, graphical, video and audio forms), images, icons, software, designs, applications, calculators, models, data, and other elements available on or through the Web Site are the property of FX, Affiliates and Providers and others, and are protected by United States and international copyright, trademark, and other laws. Your use of the Web Site does not transfer to you any ownership or other rights in the Web Site or its content.
The Web Site may only be used in the manner described expressly in this Agreement. In particular, except as expressly stated otherwise in this Agreement, the Web Site may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of FX.
The Web Site may be used only for lawful purposes. The Web Site may be accessed and used only using commercially available, SSL-capable Web browser software.
10. TRADEMARK INFORMATION
FX, www.fxfreight.com, the FX Logo, and other marks and logos appearing on the Web Site are registered and unregistered trademarks, trade names and service marks owned or licensed by FX. Other product and company names and logos appearing on the Web Site may be registered or unregistered trade names, trademarks and service marks of their respective owners. Any use of the trade names, trademarks, service marks and logos (collectively “Marks”) displayed on the Web Site is strictly prohibited. Nothing appearing on the Web Site or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Marks displayed on the Web Site.
11. PERSONAL INFORMATION PRIVACY
12. OTHER SITES
13. LINKING, FRAMING, MIRRORING, AND DATA-MINING THE WEB SITE
Links to the Web Site without the express written permission of FX are strictly prohibited. The framing, mirroring, scraping or data mining of the Web Site or any of its content in any form and by any method are strictly prohibited.
14. TERMINATION OF THIS AGREEMENT AND THE WEB SITE
15. GOVERNING LAW AND DISPUTE RESOLUTION
The Web Site is controlled by FX from Chicago, Illinois, United States of America. This Agreement, your use of the Web Site, and all related matters are governed solely by the laws of the state of Illinois, United States of America and applicable federal laws of the United States of America, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration will be before a single arbitrator. The place of arbitration will be Chicago, Illinois, United States of America. Notwithstanding the foregoing, you or FX may seek injunctive relief from an appropriate court located in Chicago, Illinois prior to or during the arbitration.
Any claim or cause of action you may have arising from, connected with, or relating to your use of the Web Site, this Agreement, or any related matters must be commenced within six (6) months after the claim or cause of action arises, after which time the claim or cause of action is forever barred, regardless of any statute or law to the contrary.
16. OTHER MATTERS
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severed from the rest of this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Notwithstanding anything herein to the contrary, the following provisions of this Agreement, and all other provisions necessary for their interpretation or enforcement, will survive indefinitely after the termination of this Agreement and remain in full force and effect and be binding upon the parties as applicable: 8 (Disclaimer, Liability Exclusion, Liability Limitation, Release, and Indemnity); 9 (Ownership and Permitted Uses of the Web Site); 11 (Personal Information Privacy); 12 (Other Sites); 14 (Termination); 15 (Governing Law and Dispute Resolution); and 16 (Other Matters). The provisions of this Agreement will inure to the benefit of and be binding upon each of FX and Affiliates and Providers and each of their respective successors and assigns and related persons, and you and your heirs, executors, administrators, successors, and personal representatives, and all persons you represent and their respective successors, assigns and related persons. You and the persons you represent may not assign this Agreement or the rights and obligations under this Agreement without the express prior written consent of FX, which may be withheld in FX’s discretion. FX may assign this Agreement and its rights and obligations under this Agreement without your consent or the consent of any persons you represent.
No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by all parties.
You and any persons you represent (on the one hand) and FX and Affiliates and Providers (on the other hand) are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by this Agreement or your use of the Web Site.
The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language.
Any rights not expressly granted by this Agreement are reserved to FX.
This Agreement is subject to change without notice.