Updated on: January 17, 2017
These Terms constitute a legally-binding agreement between you or the entity that you represent (hereinafter “you” or “your”) and Freight Exchange Network, LLC (hereinafter “FEN” or “we”) governing your use of the FREIGHTTRACER™ suite of hosted software and related services (collectively, “Services”). The Services are intended for use by distribution and manufacturing organizations to assist with supply chain management and logistics tracking. If you intend to use the Services for any other purpose, you must contact us and receive our consent in advance.
By accessing or using FEN’s website, app or Services, or associated features and content offered by FEN, you are manifesting that you agree to be bound by these Terms and the incorporated policies. IF YOU DO NOT AGREE WITH THESE TERMS, YOU DO NOT HAVE PERMISSION TO ACCESS OR USE FEN’S SERVICE OR THE ASSOCIATED WEBSITE, APP OR THEIR FEATURES, FUNCTIONS OR TOOLS.
PARAGRAPH 20 IS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR OPTIONS TO RESOLVE DISPUTES WITH FEN. PLEASE READ IT BEFORE AGREEING TO THESE TERMS.
YOU SHOULD NOT LOOK AT OR ATTEMPT TO ACCESS THE SERVICES WHILE OPERATING A MOVING VEHICLE. SAFETY FIRST!
1. Parts of this Agreement
This Agreement consists of the following terms and conditions (hereinafter the “General Terms”) and terms and conditions, if any, specific to use of individual Services (hereinafter the “Service Specific Terms”). The General Terms and Service Specific Terms are collectively referred to as the “Terms”. In the event of a conflict between the General Terms and Service Specific Terms, the Service Specific Terms shall prevail.
2. Acceptance of the Terms
You must be 18 years or older to use the Services. If you do not agree to the General Terms, do not use any of our Services. If you agree to the General Terms and do not agree to any Service Specific Terms, do not use the corresponding Service. You can accept the Terms by checking a checkbox or clicking on a button indicating your acceptance of the terms or by using the Services.
3. Modification of Terms of Service
We may modify the Terms upon notice to you at any time through a service announcement or by sending email to your primary email address. If we make significant changes to the Terms that affect your rights, you will be provided with at least 30 days’ advance notice of the changes by email to your primary email address. You may terminate your use of the Services by providing FEN notice by email within 30 days of being notified of the availability of the modified Terms if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. In the event of such termination, you will be entitled to prorated refund of the unused portion of any prepaid fees. Your continued use of the Service after the effective date of any change to the Terms will be deemed to be your agreement to the modified Terms.
4. Description of Service
We provide an array of services for the supply chain management and logistics markets that involve management, tracking and reporting on shipment information. Subject to the restrictions in Section 11 below, you may use the Services for your business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your user account and if you choose to do so, you can publish and share such content. FEN may limit the Services to particular geographic areas.
The Services use location-based services, such as GPS signals, on a mobile phone. Certain functionality of the Services cannot be provided without utilizing this technology. If you turn off these services, or if a mobile device is unable to communicate with these services, then the Services will not be fully functional or accurate.
An Internet connection is required to use the Services, and any associated charges (including, without limitation, mobile data charges) are your responsibility. We have made reasonable efforts to minimize the amount of data used by the mobile application, but there may be situations where additional data is required. You are solely responsible for all data availability and costs.
5. User Sign-up Obligations
You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address. You agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the sign up process; and (b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if FEN has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, FEN may terminate your user account and refuse current or future use of any or all of the Services.
6. Organization Accounts and Administrators
When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account.
You are responsible for (a) ensuring confidentiality of your organization account password, (b) appointing competent individuals as administrators for managing your organization account, and (b) ensuring that all activities that occur in connection with your organization account comply with these Terms. You understand that FEN is not responsible for account administration and internal management of the Services for you.
You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. You may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to firstname.lastname@example.org, provided that the process is acceptable to FEN. In the absence of any specified administrator account recovery process, FEN may provide control of an administrator account to an individual providing proof satisfactory to FEN demonstrating authorization to act on behalf of the organization. You agree not to hold FEN liable for the consequences of any action taken by FEN in good faith in this regard.
7. Personal Information and Privacy
8. Communications from FEN
The Service may include certain communications from FEN, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. We also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.
You are responsible for ensuring that your contact information contained in the Service is current at all times. FEN is not responsible for failure of any email or other communication to reach you due to incorrect information in the Service. Notices are effective if sent to your email address registered with the Service at the time of sending, even if such address is no longer active, the mailbox is “full” or not accepting messages, the FEN domain is blocked by your internet service provider, the FEN email is tagged as spam, or any other circumstance outside the control of FEN interferes with the communication.
If we receive a complaint from any person against you with respect to your activities as part of use of the Services, we will forward the complaint to the primary email address of your company account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy FEN in the communication. If you do not respond to the complainant within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by FEN to the complainant. For the avoidance of doubt, the process described in this paragraph does not apply if FEN is required to comply with a statute, court order or similar mandate that requires immediate disclosure or does not permit FEN to disclose the complaint to you. For complaints involving copyrighted content, please see Paragraph 22 below.
10. Fees and Payments
The Services are available under subscription plans of various prices. Payments for subscription plans are monthly and will be paid via credit card. Your subscription will be automatically renewed at the end of each subscription period unless you wish to not renew the subscription. At the time of automatic renewal, the subscription fee will be charged to the credit card last used by you. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different credit card. If you do not wish to renew the subscription, you must inform us at least fifteen (15) days prior to the renewal date. If you do wish to renew the subscription, you will be presumed to have authorized FEN to charge the subscription fee to the credit card last used by you.
If your credit card is rejected or you are otherwise late in making any payment, (a) we may charge a late fee of $50 plus interest on any unpaid amounts at the rate of 1% per month or the highest amount allowed by law (whichever is greater) until all amounts are paid in full; (b) in addition to any other rights we have, we may suspend your access to the Services until your account is brought current; and (c) you will reimburse us for any attorneys’ fees, court costs and other collections costs we incur in collecting any overdue amounts from you.
From time to time, we may change the price of any Service or charges for use of the Services. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any Service unless you have opted for a paid subscription plan.
11. Restrictions on Use
In addition to all other terms and conditions of this Agreement, you shall not do any of the following: (a) use or access the Services to create a similar or competitive product or service; (b) use the Service to track any person, vehicle or shipment without consent or authorization; (c) use the Services, or any data or information derived therefrom, in violation of any law, statute, regulation, court order or similar requirement; (d) transfer the Services or otherwise make it available to any third party; (e) provide any service based on the Services without FEN’s prior written permission; (f) use the third party links to sites without agreeing to their website terms and conditions; (g) post links to third party sites or use their logo, company name, etc. without their prior written permission; (h) publish any personal or confidential information belonging to any person or entity without obtaining consent from such person or entity; (i) use the Services in any manner that could damage, disable, overburden, impair or harm any server, network, computer system, resource of FEN; (j) create a false identity to mislead any person as to the identity or origin of any communication; (k) use manual or automated software, device, scripts, robots, or any other technological device to access, “scrape,” “crawl,” or “spider” any content or portion of the Services; (l) use the Services for a commercial use or purpose, other than the what is expressly permitted by these Terms; (m) copy, store, or otherwise access any information contained on the Services for to use for a purpose not expressly permitted by these Terms; (n) infringe the rights of any person or entity; (o) access, tamper with, or use non-public areas of the Services without the written consent of FEN; (p) test the vulnerability or security of the Services or FEN’s system or network without the written consent of FEN; (q) circumvent or attempt to circumvent any technological security measures of the Services; (r) use any method to send any altered, deceptive, or false source-identity information through the Services; (s) impersonate any third party or otherwise mispresent your identity or affiliations through the Services; (t) attempt to decompile or reverse engineer any software used to by FEN to provide the Services; or (g) encourage or assist any third party to commit any of the above actions. Your violation of any of these restrictions may result in immediate suspension of your access to the Services, as well as in civil and criminal penalties. FEN may contact and cooperate with law enforcement officials when pursuing violators. You understand and agree that FEN may monitor your access to the Service and may review or edit any content you may post, provided that FEN does not have any obligation to do so. FEN reserves to the right to remove or disable access to any content at any time and with or without notice in its sole discretion.
12. Spamming and Illegal Activities
You agree to be solely responsible for the contents of your transmissions through the Services. You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity.
13. Inactive User Accounts Policy
We may terminate unpaid user accounts that are inactive for a continuous period of 120 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and a reasonable option to back-up your data. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
14. Data Ownership and Usage
We respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant FEN the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for FEN’s commercial, marketing or any similar purpose. However, you grant FEN permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account (a) as required for the purpose of providing the Services to you, (b) for FEN’s internal business purposes, such as improving the Services; and (c) for creating aggregated, anonymized data that FEN may share with third parties for reporting and similar purposes, provided that your identity will not be disclosed with such anonymized data.
15. User Generated Content
You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be discovered and indexed by search engines and other content aggregators. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s), as the case may be. By making any copyrighted/copyrightable content available on any part of the Services you affirm that you have the consent, authorization or permission, as the case may be, from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that FEN will have the right to block access to or remove such content made available by you if FEN receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by FEN for this purpose. If you believe your copyrighted content is being used without your permission, please refer to Paragraph 22 below.
16. Subscription to Beta Service
We may offer certain Services as closed or open beta services (“Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that FEN will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
17. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. FEN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FEN MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM FEN, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
18. Limitation of Liability
YOU AGREE THAT FEN IS NOT LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF FEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL FEN’S ENTIRE LIABILITY, WHETHER DIRECT OR INDIRECT, TO YOU IN RESPECT OF ANY SERVICE EXCEED THE FEES PAID BY YOU FOR SUCH SERVICE.
You agree to indemnify and hold harmless FEN, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to (a) any claims that you have used the Services (i) in violation of another party's rights, (ii) in violation of any law, (iii) in violation of any provision of the Terms, or (b) any other claim related to your use of the Services, except where such use is authorized by FEN under these Terms.
20. Governing Law and Arbitration
These Terms are governed by the laws of the State of Texas, United States of America. Both you and FEN hereby disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Good, all INCOTERMS, and the Uniform Computer Information Transactions Act (UCITA), even if that Act is applicable under Texas law.
Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Texas and judgment on the arbitration award may be entered into any court having jurisdiction thereof. You acknowledge and agree that this arbitration clause prevents you from bringing a lawsuit against FEN, either alone or with any group of plaintiffs, and your sole and exclusive remedy against FEN related to or with respect to the Services is through binding arbitration as described in this paragraph. Notwithstanding anything to the contrary, FEN may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
21. Suspension and Termination
We may suspend your user account or temporarily disable access to whole or part of any Service in the event (a) we believe you are in violation of these Terms, (b) we suspect you are engaged in or facilitating illegal activity, (c) you do not use the Service for extended periods of time, or (d) we are requested to do so by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to email@example.com within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate your user account on your request.
In addition, we reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Terms and to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. You have the right to terminate your user account if FEN breaches its obligations under these Terms and in such event, you will be entitled to prorated refund of any prepaid fees. Termination of user account will include denial of access to all Services, deletion of information in your user account such as your email address and password and deletion of all data in your user account.
To reduce copyright infringement and follow the requirements of the Digital Millennium Copyright Act (“DMCA”), FEN reserves the right to block access to or remove materials FEN believes to be illegally copied and distributed, and remove and discontinue providing the Service to offenders.
If you believe content available through the Service infringes your copyright (or the copyright of someone you are authorized to act for), you may send a notice of copyright infringement containing the following information to FEN’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”):
- a physical or electronic signature of the owner of the copyrighted material, or someone authorized to act for the owner;
- identification of the works or material being infringed;
- identification of the content that is claimed to be infringing copyright, this includes information regarding the location of the infringing material, with sufficient details so FEN can quickly find and verify its existence;
- your contact information, including address, telephone number, and email address;
- a statement that it is your good faith belief that the materials identified are not authorized by the copyright owner, its agent, or the law; and
- a statement that under penalty of perjury, that the information you provided is accurate and you are authorized to make the complaint.
Once FEN has received a proper notice of infringement, FEN has the right to take any or all of the following actions:
- remove or disable the allegedly infringing material;
- notify the user providing the content that FEN has removed or disabled the allegedly infringing material; and
- terminate the user’s access to the Service.
If you are a user that received a notice of infringement from FEN and believe your content is not infringing, you may send a counter-notice to the FEN Designated Agent containing the following:
- your physical or electronic signature;
- identification of the material that has been removed or disabled and its location before it was removed or disabled;
- a statement that you have a good faith belief that the material was removed because of a mistake or misidentification;
- a statement that you consent to the jurisdiction of the Federal Court for the judicial district that covers you address, if you are located outside the United State than you must state you consent to the jurisdiction of the United States District Court, northern District of Texas located in Dallas, Texas and that you will accept service of process from the person who first provided notification of the alleged infringement; and
- your name, address, telephone number, and email.
If the FEN Designated Agent receives a counter-notice from the Member, FEN will send a copy of the counter-notice to the person who first provided notification of the alleged infringement. FEN will also inform the complainant that FEN may replace or cease disabling the allegedly infringing content in 10 business days. Unless the complainant files a lawsuit against the user, FEN may, at its sole discretion, restore the removed or disabled content.
FEN welcomes feedback, comments and suggestions for improvements to the Service (collectively, “Feedback”). You may submit Feedback by contacting our product team at firstname.lastname@example.org. Any Feedback you submit will become FEN’s sole intellectual property without any obligation for us to provide you with compensation or attribution. Should FEN request it, you agree to execute documents that transfer to us ownership in all intellectual property rights regarding your Feedback.
If you use the Service on an Apple device, then you agree and acknowledge that:
- Apple, Inc. bears no duties or obligations to you under the Terms, including, but not limited to, any obligation to furnish you with Service maintenance and support;
- You will have no claims, and you waive any and all rights and causes of action against Apple with respect to the Service or the Terms, including, but not limited to claims related to maintenance and support, intellectual property infringement, liability, consumer protection, or regulatory or legal conformance;
- Apple and Apple’s subsidiaries are third party beneficiaries of the Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
25. Export Control
You must not use the Services if (a) you are located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (b) you are listed on any U.S. Government list of prohibited or restricted parties.
26. Assignment of Rights
You may not assign or transfer your rights in and to the Service, without the prior written consent of FEN. FEN may assign its rights in and to the Service to a third party at its discretion.
27. No Relationship
FEN is a provider of the Services, and these Terms do not create any partnership, joint venture, agency or other relationship between the you and FEN. Under no circumstances will you be considered an employee or contractor of FEN by your use of the Services.
We may give you notice under these Terms by sending written notice to the email address registered in the Service for your account. Any notice to FEN must be sent via first class mail or overnight courier to the address listed on the Contact Us page of the FEN website.
29. Entire Agreement
These Terms constitute the entire agreement between the parties, and may not be modified except in a formal writing signed by both parties.
END OF TERMS OF SERVICE
If you have any questions or concerns regarding this Agreement, please contact us at email@example.com.