The Web site and Services are provided by FleetRight, Inc., a Nebraska corporation with a principal place of business located at 7300 Jacobs Creek Drive #216, Lincoln, Nebraska 68512.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any Terms contemplated by the Terms.
References to a “Buyer” mean any person or entity who accepts a Supplier’s offer of sale of a Product(s) and promises to pay therefor.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to a “Mobile Application” mean any mobile software application designed, developed, and/or made available by us related to the Services.
References to a “Supplier” mean a seller of goods who advertises its goods for sale via the Web site.
References to a “Product” mean a product designed, developed, manufactured, supplied, sold, rented and/or otherwise distributed by a Supplier, including the sale, resell, and rental of industrial, heavy equipment machines and products.
References to a “Renter” mean a person or entity who accepts a Supplier’s offer of rental of a Product(s) and promises to pay therefore.
References to the “Services” mean any and all services offered by us, including but not limited to Product marketplace services.
References to “us,” “we,” “our,” and/or “FleetRight,” mean FleetRight, Inc.
References to the “Web site” mean the Web site bearing the URL www.fleetright.com and/or any other Web sites owned and/or operated by us related to the Services.
References to “you,” and/or “User” mean the User of the Web site and/or Services, whether as a Supplier, Renter, or Buyer.
SECTION II: GENERAL PROVISIONS
FleetRight acts as an economy-sharing marketplace to allow Users to lend, rent, buy and sell heavy equipment assets. As an online marketplace provider, we do not offer for sale or rent, provide, endorse or promote any Suppliers and/or Product(s), and we have no control over the quality, safety, morality or legality of any aspect of any Product(s) listed for sale or rent, the truth or accuracy of the listings, the ability of Suppliers to provide items sold or rented, the identity of any Supplier, Renter, or Buyer, the ability of Buyers to pay for items purchased, or the ability of Renters to pay and returned Product(s) rented. We do not and cannot ensure that a Supplier, Buyer, or Renter will actually complete a transaction. If you rely on any of the information provided by or on the Web site, you do so solely at your own risk.
You acknowledge and agree that we do not sell or rent, offer to sell or rent, invite to sell or rent, make or solicit any offers. IN ALL INSTANCES, ALL SALES AND RENTALS ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE AND DELIVERED BY SUPPLIERS WITH WHOM A BUYER OR RENTER DIRECTLY CONTRACTS. AT NO TIME WILL A BUYER/SELLER OR RENTER/RENTEE RELATIONSHIP EXIST BETWEEN US. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law.
We are not responsible if information made available on the Web site or the Mobile Application is not accurate, complete or current. You acknowledge that the Web site and the Mobile Application are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge further that any reliance on the Web site or the Mobile Application is at your own risk.
We do not warrant that any errors in the Web site or the Mobile Application will be corrected.
We may modify, add to, suspend, or delete any aspect of this Web site or the Mobile Application, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
Though we try to make the Web site and the Mobile Application available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Web site or the Mobile Application will be at all times available.
We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Web site or the Mobile Application.
We reserve the right to refuse to provide access to the Web site or the Mobile Application for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel a User Account for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Web site or the Mobile Application: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Web site or the Mobile Application; (c) to violate any international or governmental regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site or the Mobile Application; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site or the Mobile Application. We reserve the right to terminate your use of the Web site or the Mobile Application for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
SECTION III: ACCOUNTS, USE OF THE SERVICES
You agree you shall not have more than one (1) Account and shall not sell, trade or transfer that Account to any other person or entity.
The Web site and the Mobile Application may contain the ability to communicate with other Users on one or more platforms, comments sections, discussion forums, Web sites, landing pages, social media outlets, sales channels, and/or other interactive features, (hereinafter "Interactive Areas,”) in which Users and Third Parties may communicate. By participating in Interactive Areas, you agree and acknowledge that you:
Shall not upload, distribute or otherwise publish to the Web site or the Mobile Application any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
Shall not threaten or verbally abuse other Users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or "spam”; and
Shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the Web site or the Mobile Application; and
Shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services except for the sale of goods in the scope envisioned by the express purpose of the Web site or the Mobile Application and
Shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; and
Shall not post unauthorized commercial communications (such as spam); and
Shall not upload, post or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; and
Shall not upload, post or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; and
Shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent your affiliation with any person or entity; and
Shall not interfere with any other User's right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a Third Party; and
Shall not engage in unlawful multi-level marketing, such as a pyramid scheme; and
Shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; and
Shall not interfere with or disrupt the Web site, the Mobile Application, the Interactive Areas or the servers or networks connected to the same, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, Web site, the Mobile Application, and/or the Interactive Areas; and
Users agree further and acknowledge that any profile they create may be edited, removed, modified, published, transmitted, and displayed by us, and they waive any rights they may have in having the material altered or changed in a manner not agreeable to them.
Should you submit, display, publish or otherwise post any content to an Interactive Area, (hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any Third Party.
You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
We shall have the right to monitor your Account in our sole and exclusive discretion.
All Users wishing to participate in the buying, selling, or renting of any Product shall be required to verify their identities to the satisfaction of our escrow service. This may include but is not limited to providing proof of identity (such as via a passport or other photo-bearing piece of identification) and residence (such as via a current utility bill.) FleetRight does not bear any responsibility and cannot be held liable for the verification or non-verification of a User’s identity.
In addition to the forgoing prohibited uses, our Mobile Application and the Web site may not be used by a Supplier to cause us to sell or rent on his, her, or its behalf any of the following Products and/or services, (hereinafter “Unauthorized Business:”) (a) sale of adult goods or services; (b) sale of products or services in the following sectors: gambling, securities, insurance, pharmacy, drugs, arms and weapons or other highly-regulated sectors; or (c) for sales of illegal goods or services, which shall include but not be limited to illegal software or illegal downloads such as music, films or games.
Supplier shall be solely responsible for refunds, chargebacks, revocations, reversible payments or payments that are fraudulent or otherwise unauthorized, and we shall have the right to collect from Supplier any and all fees associated therewith.
All sales and rentals shall be binding. Supplier agrees and acknowledges that he, she or it, and not us, shall be solely responsible for delivery of any and all purchased and rented Products to Buyers and Renters and that a contract for sale or rental arises at the point where a Buyer or Renter utilizes the Web site or the Mobile Application to purchase or rent a Product(s). Every sale shall be subject to the laws applicable, but there shall not be implied any right that is not a legal right and that is not set down in these Terms. Suppliers shall be obligated to ship the Product(s) ordered or otherwise complete the transaction with the Buyer or Renter in a prompt manner, unless there is an exceptional circumstance, such as: (a) the Supplier has a family emergency or (b) the Supplier is out of town, in which case the cause for the delay shall be promptly communicated to the Buyer or Renter.
In addition to the Unauthorized Business and Prohibited Use of the Web site and the Mobile Application set forth herein, Supplier warrants that any and all Product(s) sold or rented to Buyers or Renters (a) are not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any Third Party; (b) have not been identified by the U.S. Consumer Products Safety Commission and any other regulations set forth by the countries of Supplier and Buyer/Renter as hazardous to consumers and, therefore, are not Product(s) subject to a recall; (c) are not counterfeit; and (d) do not offend against the law of any country whose citizens might purchase or rent the Product(s). Supplier warrants further that he, she, or it owns all copyrights, trademarks and other intellectual property related to any Product(s) sold or rented via the Web site and the Mobile Application, or that Supplier has the permission of the intellectual property rights holder (a) to place the Product(s) into the stream of commerce; (b) to receive the net proceeds of such sales as arise; and (c) to defend the intellectual property in the Product(s). Finally, Supplier warrants and represents that he, she, or it has all licenses and authorizations required for performance of these Terms. Upon our request, Supplier shall provide us with sufficient documentary evidence of such authorization or waiver. We are not obliged to require such documentary evidence, and the fact that we have not requested such documentary evidence shall not be deemed in any way as a statement as to whether or not such authorization or waiver is required.
By listing a Product(s) for sale or rental Supplier must accurately describe the Product(s) and all terms of sale or rental. Supplier’s listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that Product and must be listed in an appropriate category with appropriate tags. If the "in stock" quantity is more than one (1), all Product(s) in that listing must be identical.
The purchase and rental price stated in each Product listing must be an accurate representation of the sale or rental price and shall not fall below any Manufacturer’s Suggested Retail Price, (“MSRP,”) and/or Minimum Advertising Price, (“MAP,”) policy to which the Supplier is bound. Suppliers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the Product(s). Suppliers may not charge excessive shipping fees or otherwise avoid fees, and any shipping fees charged shall not exceed the true and accurate shipping costs of the Product(s). Suppliers may not alter Product prices after a sale for the purpose of avoiding any associated transaction fee(s), misrepresent the shipping location of any Product(s), or use another Supplier's Account without our express, written permission.
Suppliers shall utilize ethical selling tactics when promoting any and all Product(s), including refraining from the making of false and/or misleading statements regarding the Product(s) and/or Supplier. Suppliers expressly agree to conduct themselves at all times in an ethical, moral, and lawful manner.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, Suppliers agree to obey any and all local, state, and federal regulations and laws regarding solicitation and product sales and rentals.
Notwithstanding the forgoing, Suppliers shall be free to choose on which social media platforms and through such other mediums and sales and rental channels they promote the Product(s), including the ability to choose his, her, or its own operation means, methods, locations, and hours.
Supplier may refuse to sell or rent a Product to any User for any or no reason whatsoever so long as such a refusal does not violate federal, state, or local laws or any other rule or regulation.
Supplier will only rent or sell Product(s) that are CARB approved for the location and application identified in writing by Renter or Buyer. Notwithstanding the forgoing, Supplier will not be liable to any Renter or Buyer for violation of any CARB requirements in the event that such Products are used in a way other than as identified to Seller. We make no statements and provide no advice as to CARB compliance.
SECTION V: SERVICE FEES; TERMS OF SALE
Supplier’s terms, including all sale and rental prices, for Product(s) shall be displayed at all times, including at the point of sale. Payment shall be effected using stripe or wire transfer or as otherwise agreed to by the Users.
Use of the Web site and the Mobile Application is free; however, some Services require the payment of fees by Supplier(s) made by Stripe or wire transfer on completed purchases and rentals. Any and all applicable Service Fees shall be as set forth at all times on the Web site and the Mobile Application as well as at the point of sale and shall be subject to change without notice in our sole and exclusive discretion. Such Service Fees shall not be refundable to Supplier, for any reason whatsoever, in the instance Supplier shall have to refund a purchase or rental to a Buyer or Renter.
If, in a given month, an unreasonable amount of Buyer or Renter complaints are made about the quality of Supplier’s Product(s), including but not limited to (a) non-delivery of orders, (b) erroneous or non-working Products, (c) improper description of Product(s), and/or (e) non-responsive customer support of Supplier, we reserve the right to charge an amount of Thirty U.S. Dollars and No/Cents ($30.00) per such incident of Buyer or Renter complaint related to the Product(s) for the rest of that month, (hereinafter an “Extra Charge.”) “Unreasonable amount of Buyer or Renter complaints about the quality of the Supplier’s Product(s)” shall mean that in any period of one (1) month more than three (3) Buyers or Renter complain about the quality of Supplier’s Product(s). We shall, without delay, give notice to Supplier of the fact that the conditions for an Extra Charge are fulfilled and that we shall be charging the Extra Charge for the rest of that month, and provide documentation on the fulfillment of the conditions for an Extra Charge to Supplier.
Where we, in our reasonable opinion, are required to do so by law, we reserve the right to withhold funds for Product sales that we reasonably deem suspicious with regard to money laundering, Unauthorized Business, fraud or other illegal activities or in case of any other chargebacks or revocations.
When you create your Account, you shall have the opportunity to designate a deposit account into which you wish to be paid out. Once funds for the rental or purchase have cleared our payment processor, they shall be available for withdraw to your designated deposit account less any fees.
You may view all pending transactions, settlement data, fees, and revenues via your Account. Except as required by law, you shall remain solely and exclusively responsible for retaining permanent records of all transactions processed via our Service(s).
You agree to provide current, complete and accurate deposit account information for payout. You agree to promptly update your account and other information, including your address, email address and bank account information, so that we can complete your transactions and contact you as needed.
Funds shall be available for withdraw to your designated deposit account once they are cleared from the escrow services. Generally, funds shall be available for withdraw fifteen (15) calendar days from the date of the transaction; however, this may, from time-to-time, take longer than average. We are not responsible and accept no liability for any delay of payment. To inquire about a payout schedule for any particular transaction, please first contact the Buyer or Renter, followed by the escrow service, and, finally, Customer Support.
We are entitled to set-off any and all claims against amounts payable to Supplier. In addition, to the maximum extent provided by law, we may collect any and all obligations due and owing by you to us by deducting them from your pending transactions in the deposit account. Fees shall be assessed at the time of transaction processing and will be deducted from the funds received. Your failure to pay all amounts due and owning shall be deemed an immediate breach of this Agreement for which you will be liable. You further agree to pay all fees and costs, including but not limited to attorneys’ fees and costs, incurred by or on our behalf arising from or related to the collection of any unpaid obligations by you.
Suppliers shall be responsible for paying any and all taxes applicable to any sales of items facilitated by the Web site or the Mobile Application, excluding any taxes on FleetRight’s own net income.
SECTION VI: INTELLECTUAL PROPERTY; PRIVACY
Furthermore, all material displayed or transmitted on this Web site and the Mobile Application, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Web site or the Mobile Application, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on this Web site and/or the Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Web site or the Mobile Application without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to email@example.com.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to FleetRight or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
SECTION VII: Third-Party Advertisements, Promotions, and Links
We may, from time to time, run advertisements and promotions from Third Parties on the Web site or the Mobile Application. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on the Web site or the Mobile Application.
We may provide you with access to Third-Party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional Third-Party tools.
Any use by you of optional tools offered through the Web site or the Mobile Application is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider(s).
Certain content, products and Services available via our Web site or the Mobile Application may include materials from Third-Parties.
Third-Party links on the Services may direct you to Third-Party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third-Parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party with whom you connect via the services. Please review carefully the Third-Party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
SECTION VIII: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
(A) YOU AGREE THAT USE OF THE WEB SITE AND the Mobile Application IS AT YOUR SOLE RISK. NEITHER US nor our AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE use of the Web site or the Mobile Application SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO we MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE or the Mobile Application OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON THE WEB SITE AND the Mobile Application ARE BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE WEB SITE or the Mobile Application.
(D) IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, personal injury or death, property damage, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE WEB SITE or the Mobile Application, ANY INTERACTIONS WITH A BUYER, renter OR SUPPLIER, AND/OR ANY PRODUCT(S) PURCHASED or rented VIA THE WEB SITE or the Mobile Application.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY utilizing THE WEB SITE AND THE SERVICES YOU ACKNOWLEDGE AND AGREe TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE Utilize THE WEB SITE or the Mobile Application.
(F) FleetRight'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF FleetRight’S 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 FLEETRIGHT IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLRS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees and agents.
You agree to defend, indemnify and hold us harmless, as well as our affiliates and vendors and respective directors, officers, Users and agents, from and against all claims, SUITS, and expenses, including attorneys' fees, arising out of OR RELATED TO (a) YOUR USE OF THE WEB SITE AND/OR the Mobile Application; (B) your noncompliance with or breach of this Agreement; (C) your use of third-Party SERVICES, products, links, advertisements, and/or tools; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; or (E) the unauthorized use of the Web site OR the Mobile Application by any other person using your information.
SECTION IX: GOVERNING LAW; ARBITRATION
These Terms shall be governed and construed in accordance with the laws of Nebraska without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Lancaster County, Nebraska, and any cause of action that relates to or arises from these Terms, the Web site, or the Mobile Application must be filed therein unless subject to the binding arbitration provisions of Section 9.2, infra.
Any and all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in Lancaster County, in the state of Nebraska. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in the software services industry and shall include a written record of the arbitration hearing. The Parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. No claims and disputes arising under or relating to this provision may be brought by Licensee more than one (1) year after the event giving rise to the cause of action has occurred or should diligently been discovered.
SECTION X: MISCELLANEOUS
Should you have any questions, comments or concerns regarding the Web site or the Mobile Application, customer service may be contacted at any time via firstname.lastname@example.org. We strive to return all customer service inquires within forty-eight (48) business hours. We may also be contacted between the hours of 9 a.m. and 5 p.m. Central Time, Monday through Friday, at +1 402-202-4348.
We may have an affiliate relationship with Third-Parties and affiliates to whose products and/or services we link and promote through the Web site and/or the Mobile Application. Because of this relationship we may earn a commission on products purchased by a User from a Third-Party affiliate.
Suppliers expressly recognize the valuable service provided to them by FleetRight, Inc., and, therefore, expressly agree to not-circumvent this agreement and/or otherwise seek to conduct their relationship via any means other than through the Web site or the Mobile Application for a period of four (4) years following the commencement of the Supplier/Buyer/Renter relationship. In the event this provision is breached Supplier agrees that he, she, or it shall be liable for any and all lost Service Fees for the duration of this Non-Circumvention period, calculated as the average monthly Service Fee earned by us based on the sales or rental, as applicable, of Supplier’s Product(s) over a period of the previous twelve (12) months multiplied by the remaining term of the Non-Circumvention period, pro rata.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
These Terms do not give any right to any Third Party unless explicitly stated herein.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
The following provisions shall survive any termination or expiration of this Agreement: Section V, VI, X, IX, 10.4.
Except as explicitly stated otherwise, any notices shall be given by postal mail to FleetRight, Inc., 7300 Jacobs Creek Drive #216, Lincoln, Nebraska 68512, and in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three days after the date of mailing.