Terms and Conditions
USE AND BROKERAGE AGREEMENT
This Agreement provides the terms and conditions on which you use valleytms.com (the “Site”). The Site is the branded page of Valley Cartage Logistics Solutions, LLC (‘VCLS”) in the Xtend TMS application (the “Application”). The Application was created by Efreightsolutions, LLC (“EFS”) and is licensed by EFS to Xtend TMS, Inc. (“Xtend”).
The Site is intended to allow you to interactively make arrangements for the shipment and carriage of freight. Your rights to use the Site are strictly limited to those that are set forth in this Agreement. All other rights relating to the Site and the Application are reserved.
Please read this Agreement carefully. BY USING THE SITE, YOU ARE ENTERING INTO THIS AGREEMENT. DO NOT USE THE SITE IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT.
When used in this Agreement, the term “you” means the shipper entering into this Agreement. If you are a corporation, limited liability company, or other entity, a representative authorized by you is entering into this Agreement for you. The person entering into this Agreement for you hereby represents and warrants to VCLS that he or she is authorized to act for you.
This Agreement May Change
This Agreement may change without notice to you. Each time you use the Site, you will be doing so under the then current version of this Agreement.
Grant of Limited Right to Use the Site
VCLS grants you a nonexclusive, revocable, nontransferable, and non-assignable right to use the Site under and in accordance with the terms of this Agreement.
No Obligation to Use the Site
This Agreement does not obligate you to use the Site. Each time that you use the Site, you will do so by choice and knowing that your use is subject to all of the terms of this Agreement. If you choose to use the Site, you may thereafter stop using the Site at any time and for any reason (or for no reason).
Booking Shipments in the Site - VCLS as Your Freight Broker
All shipments booked in the Site (“Shipments”) will be brokered by VCLS as a “broker” under 49 U.S.C. §13102(2) and 49 C.F.R. §371.2(a), and as “brokerage” under 49 C.F.R. §371.2(c). If you book a Shipment, you are engaging VCLS to act as your freight broker for that Shipment.
When you book a Shipment, you are agreeing to pay VCLS the Buy Rate that is shown for that Shipment. If any amount that you owe VCLS is not received by VCLS when due, you will pay VCLS interest on that amount at the rate of 1.5% per month (or if that rate is unlawful, the maximum rate allowed under applicable law), accruing from the date that amount was due until the date it is received by VCLS.
Shipments are brokered through the Site by Xtend as a “broker” under 49 U.S.C. §13102(2) and 49 C.F.R. §371.2(a), and as “brokerage” under 49 C.F.R. §371.2(c). Xtend’s brokerage is a service to VCLS. This Agreement is not an agreement for brokerage between you and Xtend.
Motor Carriers and Their Tariffs
When you book a Shipment, you will select the motor carrier with which that Shipment is placed (the “Carrier”). Each Shipment will be subject to its Carrier’s then applicable rules tariffs, which you may access through the Site. You understand that a Carrier’s tariffs may limit obligations and remedies with regard to loss or injury to property under 49 U.S.C. §14706.
Shipments with Valley Cartage Company, Inc.
You may select Valley Cartage Company, Inc. (“VCCI”) as a Carrier. You understand that VCLS and VCCI are separate and distinct entities. All Shipments with VCCI are subject to VCCI’s rules tariff, which you may access through the Site or, if not accessible through the Site, will be provided to you on request. Among other things, VCCI’s rules tariff limits VCCI’s liability and your remedies. When you book a Shipment with VCCI, you may accept the limitations of liability and remedies in VCCI’s rules tariff or elect to purchase supplemental insurance through the Site. When you choose to either accept the limits of liability and remedies in VCCI’s tariff or purchase supplemental insurance through the Site, you will be agreeing as to your choice of liability. You agree that having the option to accept the limitations of liability and remedies in VCCI’s rules tariff or purchase supplemental insurance through the Site provides you a fair and reasonable opportunity to choose between two or more levels of liability.
VCLS and Xtend Are Not Motor Carriers, Are Not Subcontracting or Acting as Principal or Agent, and Have No Control
VCLS and Xtend are brokers. Neither is a motor carrier. No Carrier will be, or be considered to be, a subcontractor of VCLS or Xtend. Neither VCLS or Xtend will act as, or be considered to be, the principal or the agent of any Carrier. Neither VCLS or Xtend will have, or be considered to have, any control over any Carrier or the drivers, equipment, operations, or activities of any Carrier.
Bills of Lading
When you book a Shipment, the Site will generate a Bill of Lading for that Shipment and you will issue that Bill of Lading to the Carrier at the point of origin. The Bills of Lading generated by the Site will show VCLS as freight broker, the Carrier as carrier, and Xtend’s name or identification number as Third Party Freight Charges Bill To. You will only use a Bill of Lading that is not generated by the Site for a Shipment if (a) the Site fails to generate a Bill of Lading for that Shipment, and (b) the Bill of Lading that you use shows VCLS as freight broker, the Carrier as carrier, and Xtend’s name or identification number as Third Party Freight Charges Bill To.
If VCLS creates a dedicated and branded page for you in the Site (a “Customer Page”), you hereby grant VCLS, Xtend, and EFS a fully paid, royalty free, and non-exclusive license to use your name and any trademarks, service marks, logos, commercial symbols, slogans, tag lines, and other identifiers associated with your name that you provide to VCLS (collectively, “Marks”) for display on your Customer Page. This license allows VCLS, Xtend, and EFS to use your Marks to identify you in the Site or promotional materials relating to the Site and will be in effect at any time that a Customer Page exists for you. You represent and warrant to VCLS, Xtend, and EFS that none of your Marks infringe or violate any intellectual property or other right belonging to anyone.
Using the Site
The Site is hosted by EFS and you will connect to EFS’ servers when using the Site. When you use the Site, you will comply with EFS’ access, security, and other requirements, as those requirements are made known to you. You will ensure that each person in your organization who uses the Site is authorized by you to use the Site and bind you to transactions made through the Site. You will use the Site only as expressly permitted in this Agreement. You will comply with any user guides, rules or policies that VCLS or Xtend may publish with regard to the use of the Site, provided that those user guides, rules or policies are presented in the Site or a link to the Site. VCLS or Xtend may change any of those user guides, rules or policies at any time without notice to you. Without limiting any other provision of this Agreement, you will not (a) engage in any conduct that, in any manner, inhibits or interferes with the ability of any other user to use the Site or the Application including, without limitation, by way of your use of any device or software, (b) modify the appearance of the Site, (c) engage in any “hacking” or “spamming” activity through or relating to the Site or the Application, (d) communicate with, on or through the Site in any unlawful, harmful, offensive, threatening, abusive, harassing, tortious, libelous, defamatory, obscene, profane, pornographic, sexually explicit, vulgar, bigoted or otherwise objectionable manner, including, without limitation, any manner that encourages activity that would constitute a criminal offense, give rise to civil liability, or violate any law, (e) copy or re-publish any part of the Site or prepare derivative works of or from any part of the Site, or decode, decompile, disassemble or otherwise reverse engineer any part of the Site, (f) use any framing technique to enclose any part of the Site, (g) use any robot, spider, scraper or other automated means to access the Site for any purpose, including, without limitation, performing offline searches or mirroring, or (h) bypass any systems that VCLS, Xtend or EFS use to restrict access to the Site. You will not alter or modify any disabling mechanism in the Site.
Termination of Your Ability to Use the Site
VCLS may disable or terminate your ability to use the Site at any time and for any reason (or no reason) without notice to you.
Changes in Appearance, Content, or Functionality
VCLS, Xtend, or EFS may change the appearance, content, or functionality of the Site at any time and from time to time without notice to you. All upgrades or enhancements to the Site that are made available to you will be subject to the terms of this Agreement, unless additional or different terms are contained in subsequent versions of this Agreement.
Intellectual Property and Other Rights
The Site and its content are protected by copyrights, service marks, trademarks and other intellectual, proprietary, or legal rights. Some of the Site’s content is used by VCLS or Xtend under a license. Service marks, trademarks, and other copyrighted materials that appear in the Site are owned by their respective owners. No intellectual property or other right transfers to you under this Agreement or by your use of the Site. If you provide VCLS any ideas or suggestions relating to the Site, you hereby grant VCLS and Xtend perpetual, unconditional, unrestricted, irrevocable, fully paid, royalty free, and freely transferable licenses to use and exploit those ideas or suggestions in any manner and for any purpose, without any right to compensation and free of all moral, intellectual property, proprietary, trade secret, and other rights.
Third Party Service Providers
VCLS will use the services of Xtend, EFS and other third parties (together, “Third Party Providers”) in connection with the operation of the Site and transactions conducted through the Site. Many of the provisions of this Agreement benefit Third Party Providers, and all Third Party Providers are intended beneficiaries of those provisions. However, no Third Party Provider is making any promise or commitment to you in this Agreement.
Information You Enter into the Site is Not Confidential
Information that you enter into the Site will not be treated in a confidential manner and may be viewed and used by others. You will not enter information that you consider to be confidential or proprietary into the Site.
Collection and Use of Data
When you visit the Site, servers and other equipment may automatically collect information that includes (but is not limited to) information relating to the booking of Shipments and other activity in the Site, information that is entered into the Site, the dates and lengths of uses of the Site, the names of users’ internet service providers, the names and addresses of websites from which users visit the Site, and the types of users’ computers, devices, or software. Some of that information will personally identify you. VCLS or Xtend may use or disclose the information that the Site collects in any way that is not prohibited by applicable law. Among other things, VCLS or Xtend may use the information that the Site collects to (a) complete transactions by you through the Site, (b) respond to your inquiries, provide you notices, and otherwise communicate with you (c) make proposals to you, (d) personalize your use of the Site, (e) analyze your use of the Site, (f) diagnose and resolve problems that you have with the Site, (g) advertise, promote and market the Site or other services, (h) develop new services, (i) preserve or assert legal claims or defenses, (j) comply with legal obligations, and (k) respond to law enforcement investigations. Some of these activities will require that information is disclosed to third parties. If information collected by the Site is protected by a law that is applicable to VCLS, VCLS will handle that information in accordance with that law. However, VCLS will have no responsibility or liability to you for any failure to comply with any law that is attributable to malicious or unlawful conduct. Use of the Site is limited to shippers. The Site is not directed to children under the age of 13 and does not request or collect information that allows the determination of a user’s age. NEITHER VCLS OR XTEND HAS ANY RESPONSIBILITY OR LIABILITY FOR OR RELATING TO THE PRIVACY POLICIES OF ANY OTHER WEBSITE, OR THE MANNER IN WHICH ANY DATA IS COLLECTED OR HANDLED BY ANY OTHER WEBSITE.
A “cookie” is a small file that is stored on your hard drive that contains information about your computer. The Site may set a cookie on your computer to track Site patterns and practices, identify return visitors to the Site, and personalize Site experience. You can configure your browser so that it rejects cookies, but that may limit your ability to use some of the Site’s features. When you link to another website from the Site, that website may set a cookie on your computer.
Advertisements, Links, and Social Media Plug- Ins
VCLS or Xtend may place third party advertisements (by persons or entities other than VCLS or Xtend), links to other websites, or social media plug-ins in the Site. You will not consider those advertisements, links, or plug-ins as endorsements of any kind by VCLS or Xtend. Your use of any website that is linked to the Site will be subject to the usage agreements and privacy and other policies of that website. Neither VCLS or Xtend is the manufacturer, seller, or provider of any product or service that is available from a website that is linked to the Site or the subject of any third party advertisement that appears in the Site. Neither VCLS or Xtend makes any representations or warranties, or has any responsibilities, with regard those products and services. You will not link the Site to any other website without Xtend’s express written consent.
The Site is hosted by EFS and will be covered by such protections against loss, destruction, manipulation, unauthorized disclosure, and access by unauthorized persons as EFS may have in place from time to time. However, neither VCLS or Xtend guarantees that information that you enter in the Site, or that is collected on the Site, will be secure.
The Site is provided to you on an “as is” and “as available” basis, without any warranty whatsoever, whether express or implied. You have no assurance, and neither VCLS or Xtend makes any representations or warranties, that the Site will perform its intended functions or operate without error. VCLS AND XTEND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, OF ANY TYPE, KIND, NATURE OR DESCRIPTION WHATSOEVER, WHETHER EXPRESS OR IMPLIED AND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WITH REGARD TO THE SITE.
Limitations of Claims and Liability
Under no circumstance will VCLS or any Third Party Provider be liable to you for, and to the maximum extent permitted by applicable law, you hereby knowingly and voluntarily release VCLS and all Third Party Providers from, any claim relating to, any loss or damage of any kind that you might directly or indirectly suffer (including, without limitation, direct, indirect, incidental, special, consequential, or punitive damages, and lost profits) as a result of: (a) any malfunction or error in the operation of the Site, (b) your inability to use the Site, (c) any delay in or interruption of your use of the Site, (d) any loss or corruption of any data that you enter into the Site, (e) your reliance upon any information presented in, produced by, or gathered from, the Site, (f) your access or use of any website to which the Site may be linked, (g) the transmission of any virus, worm or other corruptive, contaminating or destructive mechanism from the Site to any computer or device used to access or communicate with the Site, (h) any intentional or unintentional use, disclosure or publication of, or access to, any information entered by you or others in the Site, or information collected by the Site, including, without limitation, use, disclosure, publication, or access occurring by reason of malicious or unlawful conduct (for example, “hacking”) or insufficient or defective security mechanisms, (i) any loss, damage, delay, or shortage relating to any Shipment, (j) any loss of or damage to any personal property that results from or relates to any Shipment, (k) any bodily injury or death that results from or relates to any Shipment, (l) anything that you authorize VCLS or Xtend to do, or agree VCLS or Xtend can do, in this Agreement, (m) any failure by you to comply with the terms of this Agreement, or (n) anything that is your responsibility under the terms of this Agreement. You will not directly or indirectly start or participate in any lawsuit or other legal or administrative proceeding or proceeding against Xtend or any Third Party Provider with regard to any claim of a type described in this paragraph. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL VCLS OR ANY THIRD PARTY PROVIDER BE LIABLE TO YOU FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, BUSINESS, OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), WITH RESPECT TO THIS AGREEMENT, YOUR USE OF THE SITE, OR ANY TRANSACTION THROUGH THE SITE, EVEN IF VCLS OR A THIRD PARTY PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. YOU WILL START A LAWSUIT FOR ANY CLAIM THAT YOU MAY HAVE OR CLAIM TO HAVE AGAINST VCLS OR ANY THIRD PARTY PROVIDER RELATING IN ANY WAY TO YOUR USE OF THE SITE WITHIN ONE YEAR FOLLOWING THE DATE ON WHICH THAT CLAIM FIRST ARISES, AND THAT CLAIM WILL BE FOREVER BARRED IF YOU FAIL TO DO SO.
You will indemnify, defend and hold harmless VCLS and all Third Party Providers from and against any and all losses, costs, and damages, including reasonable attorney’s fees, incurred or suffered by VCLS or a Third Party Provider in connection with, arising from, or in any manner relating to your failure to comply with this Agreement or anything that is your responsibility under the terms of this Agreement.
U.S. Government Restricted Rights
If you use the Site on behalf of a U.S. Government agency, this Agreement constitutes the entire agreement between that Government agency and VCLS and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) 48 CFR §§ 12.211 and 12.212 (for non defense agencies) or Defense FAR Supplement (DFARS) 48 CFR §§ 227.7201 and 227.7202 (for defense agencies). Use, duplication, or disclosure of the Site or any of its components by the Government is subject to the restrictions set forth in subparagraphs (a) through (c) of the Commercial Computer Software Restricted Rights at Title 48, Chapter 18 of the Code of Federal Regulations, Section 52.227-19.
You will comply with all laws applicable to you or your use of the Site in any jurisdiction. This Agreement is governed by the laws of the State of Wisconsin, as applied to agreements entered into and wholly performed within Wisconsin by Wisconsin residents, without regard to the laws of any jurisdiction that concern conflicts of laws. Any dispute relating to this Agreement or your use of the Site will be brought and resolved exclusively in state or federal courts located in Wisconsin. You consent and submit to the personal jurisdiction of those courts. If, for any reason, any provision of this Agreement is determined to be unenforceable or invalid, that provision (or the part thereof that is unenforceable or invalid) will be deemed severed from this Agreement, and the remaining provisions of this Agreement will be carried out with the same force and effect as if the severed provision (or part) had not been a part of this Agreement. VCLS may assign or transfer any of its rights under this Agreement, in whole or in part, without notice to you. No failure by VCLS to enforce any provision of this Agreement will operate as a waiver of that provision or any violation of that provision. Section headings have been used in this Agreement for convenience purposes only. They are not a part of the provisions to which they relate and they will not limit the scope of the provisions to which they relate.
This Agreement constitutes the entire understanding and agreement between VCLS and you with respect to the subject matter addressed in this Agreement and supersedes all prior or contemporaneous oral or written communications, understandings, or agreements between VCLS and you with respect to that subject matter, including, without limitation, all prior versions of this Agreement. No course of dealing, custom, or usage of trade will vary or modify any of the terms of this Agreement. NO TERM OR PROVISION CONTAINED IN ANY DOCUMENT OR INSTRUMENT THAT YOU SEND TO VCLS, XTEND, OR EFS, WHETHER CONSISTENT OR INCONSISTENT, IN WHOLE OR IN PART, WITH THE TERMS OF THIS AGREEMENT WILL BE OR BECOME PART OF THE AGREEMENT BETWEEN YOU AND XTEND OR OTHERWISE BINDING UPON XTEND. ALL SUCH TERMS AND PROVISIONS ARE HEREBY EXPRESSLY REJECTED.