This Agreement is subject to change by TMS ONE. (“TMS ONE,” “we,” “us,” or “our”) at any time in its sole discretion. In the event of material changes to the Agreement, TMS ONE will provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Services or by sending you an email to the email address you have provided to TMS ONE. Your continued use of the Services after such changes are made constitutes your acknowledgment and acceptance of the changes. Please consult this Agreement regularly. If you do not agree to all of these terms and conditions, then you may not use the Services.
This Agreement applies to both users and customers. A user is any individual who registers for or accesses the Services. A customer is any business or company that purchases that Services from TMS ONE by entering into a separate agreement with TMS ONE detailing the terms of the customer’s usage and subscription.
You agree that this Agreement is between you and TMS ONE only, and that no distributor of the downloadable version of the mobile application is a party to this Agreement.
Description of the Services
TMS ONE includes a logistics information management service for freight carriers, managers, dispatchers, and brokers, which allows for extraction, consolidation, and management of load data from third party logistics provider accounts and email accounts.
TMS ONE utilizes a content parsing system that can extract data from multiple sources, including third party logistics provider accounts and email accounts, and allow users to view and manage the extracted data in one convenient place, i.e., a virtual “load board.”
TMS ONE also provides tracking management system (TMS) functionality that allows tracking, evaluation, matching, and management of transportation operations, and a map feature that provides real-time visualization of load data.
TMS ONE enables transmission of communications, messages, information and notifications via text, email, and phone.
TMS ONE is provided as a Software as a Service (SaaS) product accessible to users via web-based and mobile applications. The web-based and mobile applications allow access to a system and underlying software for providing the above-described services, functionalities, and features.
Account Information From Third Party Sites
Users may direct TMS ONE to retrieve their own information maintained online by third parties with which they have customer relationships, maintain accounts, or engage in transactions (“Account Information”). TMS ONE works with one or more online service providers to access this Account Information. TMS ONE does not review the Account Information for accuracy, legality, or non-infringement. TMS ONE is not responsible for the Account Information or products and services offered by or on third-party sites.
TMS ONE cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. TMS ONE cannot and does not assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any Account Information, including but not limited to user data, communications or personalization settings. For example, when displayed through the Services, Account Information is only as current as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your Account Information through the Services, as directed in the associated instructions.
Third Party Services
Some of the features or communications accessed through, or received from, the Services, may permit interactions with or contain links to third-party websites, applications, or features (“Third Party Services”). TMS ONE does not control any of these Third Party Services or any of their content. The inclusion of any link to Third Party Services does not necessarily imply TMS ONE’s endorsement of or affiliation with that third party. You acknowledge and agree that TMS ONE has no responsibility or liability for any such Third Party Services. Your correspondence and dealings with third parties found or accessed through the Services are solely between you and the third party. By using such Third Party Services, you acknowledge and agree that: (i) if you use the Third Party Services to share information, you consent to information about your profile on the Services being shared; (ii) your use of Third Party Services may cause personally identifying information to be publicly disclosed and/or associated with you, even if TMS ONE itself has not provided such information; and (iii) your use of Third Party Services is at your own option and risk, and you will hold TMS ONE harmless for activity related to the Third Party Services.
Your Registration Information and Electronic Communications
In order to enable your access to and use of the Services, TMS ONE may require you to create an account and provide certain registration details or other information, including your email address and a password (“Registration Information”). You agree that you will not use the Services or create an account unless you are at least 18 years of age.
You agree that all information you provide to the Services will be correct, current and complete and that you will maintain the accuracy and completeness of this information. You further agree and understand that you are responsible for maintaining the confidentiality of your password, which, together with your email address, allows you to access the Services. It is your responsibility to promptly update us with your complete, accurate contact information, or change your information, including email address, as appropriate.
You agree that you will not transfer, sub-license, sell, or assign your rights in your account to any other person. Any unauthorized use of your account by any third party is subject to these terms and conditions as though you were using the account.
TMS ONE reserves the right to terminate your account or restrict or refuse access to your account, or to delete any content posted through your account, with or without notice, for any reason or no reason, and without any liability to you. If your account is terminated or otherwise deactivated, whether by TMS ONE, yourself, or anyone else, your data will no longer be accessible through your account, but that data may persist and appear within the Services. Nevertheless, TMS ONE has no obligation to retain any data associated with your account following termination or deactivation of the account.
By providing us with your email address, you consent to receive all required notices and information electronically at that email address. Your consent to receive communications electronically is valid until you terminate your relationship with us. If you become aware of any unauthorized use of your Registration Information for the Services, you agree to notify TMS ONE immediately.
Your Use of the Services
Your right to access and use the Services is personal to you and is not transferable to any other person or entity. You may access and use the Services only for lawful purposes. You represent that you are authorized to provide us with all Registration Information, Account Information, and other information necessary to facilitate your use of the Services.
Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that TMS ONE, in its sole discretion, may elect to take. In no event will TMS ONE be liable to any party for any loss, cost, or damage that results from any scheduled or unscheduled downtime.
Your sole and exclusive remedy for any failure or non-performance of the Services, including any associated software or other materials supplied in connection with such services, shall be for TMS ONE to use commercially reasonable efforts to effectuate an adjustment or repair of the applicable service.
Use With Your Mobile Device
Use of the Services may be available through a compatible mobile device using Internet and/or other network access, and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. TMS ONE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
Online and Mobile Alerts
You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. TMS ONE may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alerts. TMS ONE shall not be liable for: any delays, failure to deliver, or misdirected delivery of any alerts; any errors in the content of an alert; or any actions taken or not taken by you or any third party in reliance on an alert.
Electronic alerts will be sent to the email address or mobile number you have provided for the Services. If your email address or your mobile number changes, it is your responsibility to inform us of that change. Alerts may also be sent to a mobile device that accepts text messages. Change to your email address and mobile number will apply to all of your alerts.
TMS ONE may, in its sole discretion, permit you to submit, upload, post, publish, display, transmit, or otherwise make available to TMS ONE, through the Services, textual, audio, and/or visual content, and information, including data, usernames, passwords, email addresses, other login information, commentary, feedback, ideas, suggestions, support requests, materials, and other content (“User Content”). You acknowledge that any User Content provided by you is not confidential.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant TMS ONE the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor TMS ONE’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by TMS ONE in its sole discretion, whether or not such material may be protected by law. TMS ONE may, but shall not be obligated to, review, monitor, or remove User Content, at TMS ONE’s sole discretion and at any time and for any reason, without notice to you.
Rights You Grant to Us
By using the Services, you expressly authorize TMS ONE to access your Account Information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. TMS ONE will use Account Information including usernames and passwords that you provide, to log into websites for third parties that you have identified. You hereby authorize and permit TMS ONE to use and store information submitted by you to accomplish the foregoing and to configure the Services so that they are compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Account Information to you as part of the Services, you grant TMS ONE the authority to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN TMS ONE IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, TMS ONE IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services. TMS ONE is not responsible for any logistics tracking or processing errors or other service-related issues, including those issues that may arise from inaccurate Account Information.
Rights Granted to You
The Services are the property of TMS ONE. TMS ONE grants to you a limited, non-exclusive, non-transferable, revocable license, without the right of sublicense or re-distribution, to (i) access and make use of the Services solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your own use or your company’s use.
The software applications for accessing the Services and the content are licensed, not sold, to you, and TMS ONE retains ownership of all copies of the software applications and content even after installation on your personal computers, mobile handsets, tablets, and other relevant devices. Except for the rights expressly granted to you in this Agreement, TMS ONE grants no right, title, or interest to you in the Services. Third-party software (including open source software libraries) included in the Services are licensed to you either under the Agreement or under the relevant third party software library’s license terms.
TMS ONE Intellectual Property Rights
The Services contain material owned or licensed by TMS ONE (“ TMS ONE Materials”). The TMS ONE Materials may include, without limitation, the look and feel of the Services (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software and other material. The TMS ONE Materials are protected by copyright, trademark, patent, trade secret, and other laws. For example, TMS ONE is the owner of (i) trademark rights in the TMS mark and the TMS ONE mark, (ii) copyright in the software used to provide the Services, (iii) copyright in screen displays related to the Services, (iv) trademark and/or trade dress rights in all page headers, custom graphics, button icons, and scripts pertaining to the Services, and (v) all other rights in the Services and technology under U.S. and international intellectual property laws. As between you and TMS ONE, TMS ONE owns and retains all rights in the TMS ONE Materials and the Services.
TMS ONE’s intellectual property may not be copied, imitated, or used, in whole or in part, without the prior written permission of TMS ONE. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights of TMS ONE, whether by estoppel, implication, or otherwise.
TMS ONE grants you the right to view and use the Services subject to these terms and conditions. You may download or print a copy of information for the Services for your use or your company’s use only. Any distribution, reprint, or electronic reproduction of any of the TMS ONE Materials in whole or in part for any other purpose is expressly prohibited without our prior written consent. You agree not to use, nor permit any third party to use, the Services or TMS ONE Materials in a manner that violates any applicable law, regulation, or this Agreement. You agree not to (via any means, now known or later discovered or created) reproduce, modify, distribute in any manner (including rent, lease, loan or sell), mirror, frame, republish, download, transmit, create derivative works of, or remove, modify, publicly display, or conceal any of TMS ONE’s or any third party’s intellectual property or alter any notice of copyright, trademark, trade name, service mark, or any other proprietary notice or legend relating to the same, in whole or in part.
TMS ONE may use third-party trademarks on the Services to identify the owners of those marks. Use of any third-party trademark is meant only to identify the trademark owners and their goods and services, and is not intended to imply any association or sponsorship between the trademark owners and TMS ONE.
You agree that you will not:
- Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services, without TMS ONE’s express written consent, which may be withheld in TMS ONE’s sole discretion;
- Transmit any communication through the Services that constitutes spam or otherwise constitutes duplicative or unsolicited messages in violation of applicable laws;
- Transmit or store any material through the Services that is infringing, offensive, abusive, defamatory, pornographic, obscene, threatening, libelous, or otherwise unlawful, including material which violates intellectual property rights, privacy rights, or proprietary rights of TMS ONE or a third party;
- Post or transmit any file which contains malicious content such as malware, viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise disrupt or interfere with the proper working of the Services;
- Circumvent any technology used by TMS ONE, its licensors, or any third party, to protect the Services;
- Attempt to decipher, decompile, re-compile, disassemble, reverse-engineer, or otherwise access any of the software, including the source code, comprising or in any way making up a part of the Services;
- Attempt to gain an unauthorized access to any portion of the Services; or
- Use, or permit any third party to use, the Services in a manner that violates any applicable law, regulation, or this Agreement.
Disclaimer of Representations and Warranties
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, DAMAGE RESULTING FROM RELIANCE ON THE SERVICES, OR OTHER DAMAGES THAT RESULT FROM OBTAINING ANY CONTENT FROM THE SERVICES INCLUDING COMPUTER VIRUSES), EVEN IF TMS ONE HAS BEEN ADVISED OF OR IS AWARE OF THE RISK OF SUCH DAMAGE. TO THE EXTENT PERMITTED BY LAW, TMS ONE, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, THIRD PARTY PROVIDERS, DISTRIBUTORS, SUPPLIERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS (COLLECTIVELY, THE “ TMS ONE PARTIES”) PROVIDE THE SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT, SERVICES, AND PRODUCTS ASSOCIATED WITH THE SERVICES OR PROVIDED THROUGH THE SERVICES (WHETHER OR NOT SPONSORED), “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” THE TMS ONE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES OR ANY OTHER CODE THAT IS INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
THE TMS ONE PARTIES MAKE NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED:
i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, ACCURACY, TRUTHFULNESS, OR COMPLETENESS OF THE SERVICES, OR THE CONTENT OF THE SERVICES (WHETHER OR NOT SPONSORED);
ii) THAT THE SOFTWARE OR SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER DEVICE, SOFTWARE, SYSTEM, OR DATA;
ii) THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE;
iii) THAT THE SERVICES, OR THE CONTENT OF THE SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS;
iv) AS TO THE QUALITY OR VALUE OF ANY OF TMS ONE’S PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN VIA THE SERVICES; OR
v) THAT ANY ERRORS PERTAINING TO THE SERVICES WILL BE CORRECTED.
THE TMS ONE PARTIES DO NOT ENDORSE ANY THIRD PARTY DATA OR CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, CLAIM, LIABILITY, OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY THIRD PARTY DATA OR CONTENT.
NO INFORMATION PROVIDED VIA THE SERVICES, OR BY THE TMS ONE PARTIES, SHALL CREATE ANY WARRANTY. THE TMS ONE PARTIES DO NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SERVICES.
THE TMS ONE PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE TMS ONE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS AND THE BELOW LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
Limitations on TMS ONE Liability
UNDER NO CIRCUMSTANCES WILL THE TMS ONE PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICES; (B) THE TMS ONE MATERIALS (DEFINED ABOVE); (C) USER CONTENT (DEFINED ABOVE); (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE TMS ONE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICES; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE TMS ONE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE TMS ONE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE TMS ONE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE ACTUAL AMOUNT PAID TO TMS ONE FOR THE USE OF THE SERVICES GIVING RISE TO THE CLAIM.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF TMS ONE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE TMS ONE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE TMS ONE PARTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST TMS ONE MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 19 OR FILING AN INDIVIDUAL ACTION UNDER SECTION 19) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE OT THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
THE TMS ONE PARTIES ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You acknowledge and agree that TMS ONE is not a backup service and you are solely responsible for content backup and storage. The TMS ONE Parties will not be liable to you for any modification, suspension, or discontinuation, of the Services, or the loss of any User Content. You further acknowledge that the Internet and other networks may be subject to security breaches, and as such, submission of content or other information may not be secure. You agree to accept sole and exclusive responsibility (as between the TMS ONE Parties and you) for adequate protection of your data and/or devices and equipment used in connection with the Services.
You are solely responsible for your interactions with other users of the Services, whether online or offline. You agree that the TMS ONE Parties have no responsibility or liability whatsoever for the conduct of any user.
Your Indemnification of TMS ONE
You (and any third party on whose behalf you operate an account or activity on the Services) agree to indemnify and hold the TMS ONE Parties harmless from any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with the following (whether resulting from your activities on the Services or those conducted on your behalf): (i) your User Content or your access to or use or misuse of the Services; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authority; or (v) any misrepresentation made by you. You agree that the TMS ONE Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the TMS ONE Parties in connection therewith. You also agree to indemnify and hold the TMS ONE Parties harmless from and against any claims brought by third parties arising out of your use of the Services, your violation of this Agreement, or the infringement by you or made under your account, of any intellectual property or other right of any person or entity. You will cooperate as fully required by TMS ONE in the defense of any claim. The TMS ONE Parties reserve the right to assume exclusive control of their defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify the TMS ONE Parties. You shall not settle any dispute or claim subject to your indemnification under this Agreement without written consent from TMS ONE.
This Agreement will continue to apply to you until terminated by either you or TMS ONE. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, is irrevocable and will therefore continue after expiry or termination of the Agreement for any reason. TMS ONE may terminate the Agreement or suspend your access to the Services at any time, including in the event of your actual or suspected unauthorized use of the Services, or non-compliance with the Agreement. If you or TMS ONE terminate the Agreement, or if TMS ONE suspends your access to the Services, you agree that TMS ONE shall have no liability or responsibility to you, and TMS ONE will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. You may terminate your account by uninstalling the software application from your device and ceasing use of the Services, or by contacting us through the contact form which is available on our website. You may terminate this Agreement at any time.
To the extent permissible under applicable law, TMS ONE reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You understand, agree, and accept that TMS ONE has no obligation to maintain, support, upgrade or update the Services, or to provide all or any specific content through the Services. TMS ONE reserves the right to change the Services, including applicable fees, in our sole discretion and from time to time. Your use of the Services, after you are notified of any change(s) will constitute your agreement to such change(s). If you do not agree to the changes after receiving a notice of the change to the Services, you may stop using the Services. You agree that TMS ONE shall not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Services.
zaGoverning Law, Mandatory Arbitration
ANY DISPUTES, CLAIMS, OR CONTROVERSIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, OR THE BREACH, ENFORCEMENT OR VALIDITY THEREOF, SHALL BE RESOLVED BY MANDATORY BINDING INDIVIDUAL (NOT CLASS) ARBITRATION ADMINISTERED BY ADR SYSTEMS, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims quality. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Illinois law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. YOU AND TMS ONE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND TMS ONE ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
The arbitration will be conducted in accordance with the ADR Systems Rules of Commercial Arbitration and the ADR Systems Commercial Fee Schedule in effect at the time of filing the demand for arbitration. Either party may commence the arbitration by filing a written demand for arbitration with ADR Systems along with the requisite filing fee. The parties covenant that they shall participate in the arbitration in good faith and that they will share equally in the costs, unless decided otherwise as part of the Arbitral Award. The arbitration will take place in Chicago, Illinois, before one or more arbitrators selected from ADR Systems’ Commercial Panel in accordance with ADR Systems’ procedures for the appointment of arbitrators. The award rendered by the arbitrator(s) is final and binding, and may be entered into any court or tribunal having jurisdiction thereof. Any court of competent jurisdiction may enforce the provisions of this paragraph. The party seeking enforcement is entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom enforcement is ordered. ADR Systems may be contacted at 800.423.7010; Attention: Commercial Case Manager to assist with any questions regarding the arbitration process.
You acknowledge that the Services, including the mobile application, web application, and underlying software, may be subject to United States export and re-export laws and regulations or similar laws applicable in other jurisdictions. You agree to comply with all applicable export and re-export control laws and regulations, and that you shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any products, software or technology (including products derived from or based on such technology) received from TMS ONE under the Agreement, to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
The Services are “commercial items,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” as such term is used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Services are being licensed to U.S. Government end users only as “commercial items” and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
If you believe that your intellectual property is being used on the Services in a way that constitutes copyright infringement, please provide our Designated Agent (set forth below) the following information as required by Section 512(c)(3) of the Digital Millennium Copyright Act (DMCA):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be sent to TMS ONE’s Designated Agent, whose contact information is as follows:
TMS ONE, Inc.
Attention: DMCA Designated Agent
1 World Trade Center, Suite 2360
Long Beach, CA 90831
Please note that Section 512(f) of the DMCA may impose liability for damages on any person who knowingly sends meritless notices of infringement. Please do not make false claims.
Any information or correspondence that you provide to TMS ONE may be shared with third parties, including the person who provided TMS ONE with the allegedly infringing material.
If any provision of this Agreement is held invalid, illegal, or unenforceable under any applicable statute or rule of law, it is, to the extent necessary, deemed modified in order to comply with applicable law, or if not capable of such modification shall be deemed severed from this Agreement and the validity and enforceability of the remaining provisions shall not be affected in any way.
You may not assign this Agreement without the prior written consent of TMS ONE, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. TMS ONE may assign this Agreement without restriction and without any notice to you or consent from you. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
TMS ONE’s failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. TMS ONE’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement.