(2) GENERALLY AUTHORIZED USE: ACF grants You a non-exclusive right to access and use the Web Site, and the products or services that ACF may offer or make available from or through the Web Site, including offers to broker the motor carrier transportation services from Carriers (“Service”). If You request or desire any rail, ocean, or air transportation, ACF relies upon contracted third-party forwarders or carriers to arrange or undertake such modes of transportation. This grant is solely for business purposes under this Agreement, effective as of the day of the activation of your client portal account on the Web Site (“Account”) when You receive your initial password for use of the Web Site, and does not include any personal, family, or household purpose. Your use of the Service will at all times comply with all applicable laws, rules, Carrier’s rules and tariffs (“Carrier Tariffs”) and regulations and all rules periodically imposed by ACF or any Carrier which may change from time to time. You assume total responsibility and risk for your use of the Service and the Internet, generally.
(3) INTERACTIVE FEATURES: You understand and agree that certain interactive features available on the Web Site are to facilitate obtaining Service from Carriers. You acknowledge that ACF is a broker or intermediary and is not a Carrier or an agent for a Carrier and ACF does not control the Carriers or the Service provided by the Carriers. You specifically acknowledge that your use of a Carrier is subject to a contract solely between You and the Carrier, and responsibilities under or arising out of that contract do not create or involve any obligations to You by ACF. You agree to be subject to and comply with all obligations and requirements applicable to your use of such Carrier Service, including all terms, conditions and limitations of liability applicable to such Service as determined by a Carrier, and that a Carrier Tariffs may take precedence over this Agreement when applicable.
(4) FREIGHT CHARGES; SHIPMENT SPECIFICATIONS; AND PAYMENTS: All payments for Carrier Services shall be paid by You to ACF. You assume full responsibility for, represent, and warrant the accuracy of the preparation of the information that You provide to Carriers through the Web Site, and the preparation of all applicable shipping information including but not limited to freight class, weight, dimensions, permitting, handling instructions, commodity type, and excess valuation (hereinafter “Shipping Instructions”). If the Shipping Instructions is incomplete or inaccurate in any way, You authorize Carrier to complete or correct it on your behalf and the charges may be adjusted accordingly; provided, however, that Carrier is not obligated to complete or correct any such Shipping Instructions. ACF also reserves the right to amend or adjust the original quoted amount, or re-invoice you, if the original quoted amount was based upon incorrect Shipping Instructions received at the time of the original quote, if additional services by the carrier were required, or as otherwise necessary to perform the pickup, transportation and delivery functions therein. You assume full responsibility, warrant, and represent the accuracy of marking, addressing and packing all shipments to ensure safe transportation with ordinary care in handling and for complying with all applicable customs, import, export or other laws, regulations and requirements imposed by law. You specifically acknowledge, represent, and warrant that claims for cargo loss, damage and delay, as well as all other claims arising out of the transportation of a shipment, are matters for resolution between You and the Carrier that shall not involve ACF. You specifically acknowledge that You will be paying ACF for the Service and that by using the Service You incur a specific and absolute obligation to ACF to pay for such Service regardless of any controversies that may arise between You and a Carrier. You agree to timely remit payment without set off for all charges in connection with use of the Service. You agree that any failure of timely payment shall allow ACF an action for recovery of any principal amount due, plus interest on any overdue amount at the rate of 1.5% per month (or the highest permitted legal rate), plus reasonable attorney’s fees, and all other litigation expenses and costs incurred in the recovery of any such amounts due. When paying by credit card or electronic funds, You agree to be responsible for all charges payable, including any adjustments, on account of such shipment. These charges and adjustments, if any, will be automatically debited to your credit card or bank account. You are permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges. If ACF does not receive a dispute within the allowable thirty (30) business days, the disputed item will be denied by the ACF.
(5) CONFIDENTIALITY OF PASSWORDS: You may change the password on the Account at any time without notifying ACF. You are solely responsible for maintaining the confidentiality of your password. You agree to notify ACF immediately of any unauthorized use of your password or Account, or any other breach of security. If ACF has reason to believe that a breach of security exists, ACF may but is not obligated to change your password, or otherwise deny You access to the Account, without notice. In the event of a breach of security, You will remain liable for any unauthorized use of the Account until You notify ACF.
(6) AUTHORITY TO MONITOR, PRIVACY AND DATA USE: If You engage in the inputting of data, uploading or downloading of files, or otherwise engage in any form of transmission or communication in or through the Service (“Communications”), You grant to ACF an irrevocable, perpetual, fully-paid, royalty-free worldwide license to use, display, copy, modify and/or publish such Communications. You acknowledge that no fiduciary or other relationship is created between You and ACF by this Agreement; that your Communications are not confidential; and that ACF may monitor, read and disclose your Communications. You consent to ACF’s use of manual and electronic means to monitor and access your Communications. ACF has the right but not the obligation to monitor the Service, and to disclose any information necessary to satisfy any law, regulation or other lawful request, to operate the Service properly, or to protect itself. ACF may take all reasonable actions, including restriction, suspension or termination of your access privileges, at any time in its discretion. ACF will not be liable to You for any action ACF takes to restrict access, or for any action taken to protect the rights of a third party.
(7) PROPRIETARY RIGHTS: ACF and/or its licensors own all rights, title and interest in and to all components of the Service, including but not limited to the look and feel of the end-user interfaces associated with the Service. You acknowledge that the Service may be the subject of intellectual property and proprietary rights. You may not reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any material except as expressly permitted by the owner of such proprietary rights. You will not copy, modify, adapt, reproduce, translate, distribute, reverse engineer, decompile, or disassemble any aspect of the Service that ACF and/or its licensors own, or any service, information, or materials that You may access through the Service. All service marks, trademarks, trade name, trade dress and other indicia of source used herein and otherwise on the Web Site (collectively called the “Marks”) are proprietary to ACF or other respective owners that have granted ACF the right and license to use such Marks. You do not receive any trademark rights or any other rights in or to the Marks.
(8) TERMINATION OF ACCOUNT: You may terminate the Account at any time by emailing your servicing ACF account representative. ACF may modify, suspend or terminate the Account immediately for your breach of this Agreement. On termination of this Agreement for any reason, ACF may terminate your login name and password, and delete any or all data files associated with the Account.
(9) CODE OF CONDUCT: ACF may terminate your Account if You fail to abide by this Code of Conduct and any other rules that may periodically be established by ACF and communicated to You by posting on the Web Site. You will not: (a) disclose your password, or let the Account be used by any unauthorized third party; (b) use the Service to falsify invoices or other data transmitted to Carriers or ACF; (c) use the Service in any manner that is prohibited by law or that would violate any applicable local, state, national or foreign law, rule or regulation; (d) interfere with or disrupt the Service or servers or networks connected to the Service; (e) disobey any requirements, procedures, policies, or regulations of networks connected to the Service; or (f) upload, download, publish, transmit, reproduce or transmit: (1) any material that contains software viruses; (2) any computer code, files or programs that interrupt, destroy or limit the functionality of the Service or any computer software, hardware or telecommunications equipment; (3) any material that contains objectionable information of any kind; (4) any content that infringes any proprietary right of any person; or (5) any content that You do not have the right to transmit.
(10) YOUR WARRANTY OF AUTHORITY: You represent and warrant to ACF that you, and the individuals You permit establish this Account and to otherwise access this Account, are authorized to act in the manner in which they act to secure the Services and that your use of the Web Site and Services shall at all times be in compliance with all applicable laws, rules and regulations, including, but not limited to, customs, import, export, bonding (inclusive of alcoholic beverages) and those laws, rules and regulations that apply to the offer and shipment of hazardous materials or dangerous goods. You further represent and warrant that You are solely acting on behalf of the entity whose name the Account is issued. If You offer hazardous materials or dangerous goods, You specifically warrant that (a) You are qualified by all regulations and laws; (b) You are the sole offeror; and (c) You are not relying in any way upon ACF as a qualified offeror.
(11) INDEMNIFICATION: To the fullest extent allowed by law, You agree to indemnify, defend and hold harmless ACF, and its shareholders, officers, directors, employees, suppliers, independent contractors, content or service providers, subsidiaries and affiliates from and against any and all actual or alleged claims, proceedings, causes of action, damages, freight charges, injuries, liabilities, expenses, losses and costs, including, without limitation, attorneys’ fees and costs, incurred in connection with any claim arising out of your breach of this Agreement, including any failure to comply with Carrier requirements, or a breach of any of your representations or warranties set forth herein. You agree to cooperate as fully as reasonably required in the defense of any claim. ACF reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification, and You will not settle any matter without the written consent of ACF.
(12) DISCLAIMER OF WARRANTY: THE WEB SITE, THE SERVICE AND THE CONTENT OFFERED THROUGH THE WEB SITE (INCLUDING WITHOUT LIMITATION SHIPPING RELATED SERVICES AND THE SHIPPING RELATED INFORMATION) IS PROVIDED “AS IS” AND “AS AVAILABLE,” BY ACF AND ITS LICENSORS (INCLUDING WITHOUT LIMITATION THE CARRIERS) WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, CONTENT ACCURACY, OR THE RESULTS TO BE OBTAINED FROM ITS USE. IT IS YOUR SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, USEFULNESS OR VALIDITY OF ALL INFORMATION. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ACF AND ITS LICENSORS (INCLUDING WITHOUT LIMITATION THE CARRIERS) MAKE NO WARRANTIES REGARDING THE WEB SITE, THE SERVICE OR THE CONTENT OFFERED THROUGH THE WEB SITE AND WILL NOT BE LIABLE FOR YOUR USE OF THE WEB SITE, THE SERVICE OR THE CONTENT OFFERED THROUGH THE WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OR LACK OF SECURITY OF OR ERROR IN THE WEB SITE OR THE SERVICE UNDER ANY CIRCUMSTANCES. ACF DOES NOT WARRANT THAT THE WEB SITE OR THE SERVICE WILL BE SECURE, UNINTERRUPTED, FREE FROM DOWNTIME, OR ERROR-FREE OR THAT ANY DEFECTS IN THE WEB SITE, THE SERVICE OR THE CONTENT OFFERED THROUGH THE WEB SITE WILL BE CORRECTED IN A TIMELY FASHION.
(13) LIMITATION OF LIABILITY: YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEB SITE, THE SERVICE, THE CONTENT OFFERED THROUGH THE WEB SITE, AND THE SHIPPING INSTRUCTIONS SUPPLIED THROUGH THE WEBSITE. YOU ALSO ASSUME TOTAL RESPONSIBILITY AND RISK FOR ANY AND ALL SHIPPING INSTRUCTIONS THAT YOU SUPPLY TO THE WEB SITE. ACF AND ITS LICENSORS (INCLUDING WITHOUT LIMITATION THE CARRIERS) WILL NOT BE LIABLE TO YOU, OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER DAMAGES UNDER ANY THEORY OF LAW ARISING FROM USE OR INABILITY TO USE THE WEB SITE, THE SERVICE OR THE CONTENT OFFERED THROUGH THE WEB SITE; SHIPPING INSTRUCTIONS PROVIDED BY YOU TO THE WEB SITE; FOR ANY ERRORS IN THE WEB SITE, THE SERVICE OR THE CONTENT OFFERED THROUGH THE WEB SITE; OR FOR ANY ACTIONS TAKEN OR NOT TAKEN IN CONNECTION WITH THE WEB SITE OR SERVICE, EVEN IF YOU ADVISED ACF ITS LICENSORS (INCLUDING WITHOUT LIMITATION THE CARRIERS) OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND THAT IF YOU BECOME DISSATISFIED WITH THE WEB SITE OR THE SERVICE OR ACF’S POLICIES OR DISAGREE WITH ANY MODIFICATION TO THE WEB SITE OR THE SERVICE, THAT YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE YOUR USE OF THE WEB SITE AND SERVICE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(14) CONSTRUCTION AND SEVERABILITY: If any court of competent jurisdiction finds any provision, term, or condition of this Agreement to be unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement will continue in full force and effect.
(15) SEVERABILITY: If any of these conditions shall be deemed invalid, void or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
(16) ASSIGNMENT: You may not assign or transfer by contract, by operation or law or otherwise this Agreement or your rights or obligations hereunder without ACF’s prior written consent. ACF may assign this Agreement and its rights and obligations in its sole discretion and without your consent.
(17) CONTROLLING LAW: Any claim, dispute or litigation relating to this Agreement, unless preempted or controlled by federal law and regulations, shall be governed by the laws of the State of Michigan without regard to its conflicts of laws principles and any dispute in connection with any shipment scheduled or tendered through the Web Site shall be resolved only in a court having jurisdiction in the County of Jackson, in the State of Michigan. You hereby irrevocably consent and submit yourself to the personal jurisdiction of said courts for all such purposes. TRIAL BY JURY IS WAIVED
(18) ACCEPTANCE OF AGREEMENT: Your acceptance and use of a password, the Account, other use of the Web Site or other use of the Service constitutes acceptance of this Agreement. Your acceptance shall represent You have read and understand all the terms and conditions of this Agreement.
(19) CHANGES TO THIS AGREEMENT: ACF may modify this Agreement and impose new or modified policies, practices, or rates at any time, with or without notice to You, in its sole and absolute discretion. Your continued use of the Service will be conclusively deemed an acceptance of all such modification(s). Further, You agree to review the terms and conditions of this Agreement periodically to become aware of any changes.