ELD ONE USER AGREEMENT
This Agreement (“Agreement”) is made between TMS ONE, LLC DBA ELD ONE, and You. This Agreement applies to:
- AI Dash camera,
- GPS tracker,
Grant of Rights
Subject to your complete and ongoing compliance with all the terms and conditions of this Agreement (“Terms”), ELD ONE grants you: (1) a limited, non-exclusive, nontransferable, revocable license, without the right of sublicense, to install and use the authorized number of copies of the Software for each month that you have paid for in advance solely in machine-readable form and solely for your use for lawful purposes, on the authorized number of compatible mobile devices that you or your drivers own or control, and (2) the right to access and use the Service and its contents. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
You may not: copy, sell, rent, sublicense, assign, modify, publicly display or distribute, or make a derivative work from the Software or Service. The Software contains valuable trade secrets owned by ELD ONE. You further agree not to do any of the following:
A. Post, upload, publish, submit, or transmit anything that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation 2 or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances
B. Use, display, mirror, or frame the Services, or any individual element within the Services, TMS ONE’s name, any ELD ONE LLC trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without ELD ONE’s express written consent
C. Access, tamper with, or use non-public areas of the Services, TMS ONE, LLC’s computer systems, or the technical delivery systems of TMS ONE LLC’s providers.
D. Attempt to probe, scan, or test the vulnerability of any TMS ONE LLC system or network or breach any security or authentication measures
E. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by TMS ONE LLC or any of TMS ONE LLC’s providers or any other third party (including another user) to protect the Service.
F. Attempt to access or search the Services or download any Software from the Services using any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools etc.) other than the software and/or search agents provided by TMS ONE LLC, or other generally available third-party web browsers.
G. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other forms of solicitation.
H. Use any meta tags or other hidden text or metadata utilizing a TMS ONE LLC trademark, logo, URL, or product name without TMS ONE LLC’s express written consent.
I. Use the Services for the benefit of any third party or in any manner not permitted by these Terms.
J. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information.
K. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services.
L. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services.
M. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission.
N. Impersonate or misrepresent your affiliation with any person or entity.
N. Impersonate or misrepresent your affiliation with any person or entity.
P. Encourage or enable any other individual to do any of the foregoing.
Although we are not obligated to monitor access to or use of the Services or to review or edit any of Services or your data, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of our content or your data, at any time and without notice, including, but not limited to, if we, atour sole discretion, consider any of our content or your data to be objectionable or in violation of these terms. We have the right to investigate violations of these Terms or conduct that affects the Services.
The primary purpose of the Software and Service is to allow a carrier to track its units. By logging into the Software, you authorize ELD ONE to access your location and report it in the Service. You agree and acknowledge that: (1) location data ELD ONE collects from you is directly relevant to your use of the Software and Service, and (2) ELD ONE may, for so long as your drivers allow, provide drivers locations to the Service so that they may be monitored by you, as the carrier. If you choose to disable the Software, you will not be able to effectively use the Service. PLEASE BE AWARE OF THE FACT THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE AND ELD ONE DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA. If you provide data about equipment or loads, including but not limited to source and destination, contract rate, lane usage, and equipment type, you agree ELD ONE may use that data for any analytical purposes to improve the Software and Service. If you use the Software outside the United States, you expressly consent to the transfer and processing of your data outside that jurisdiction.
Intellectual Property Ownership.
ELD ONE exclusively owns all title and copyright in the Software and Service. You may not remove or alter any copyright notice or other warning displayed in the Software or Service.
This License is not for sale and does not convey any of these rights of ownership to you whatsoever.
ELD ONE reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Software or Service, or to change, modify, add, or remove portions of this License at any time by making the modified License available to you through the Service. The License will be identified as of the most recent date of revision and will be effective immediately upon being made available through the Service, except as follows: (1) in the event any modification materially alters your rights, ELD ONE will attempt to notify you directly through a message sent to the email address you have provided to ELD ONE, if any, or through a pop-up window or other notification when you access or use the Software or Service, (2) such materially modified License will be effective upon the earlier of your use of the Service with actual knowledge of the changes or 30 days after the changes are made available to you, and (3) no modifications to this License will apply to any dispute between you and ELD ONE that has been aroused prior to the date of such modification. Your use of the Service after modifications to the License become effective constitutes your binding acceptance of such changes.
Third-Party Communications Systems
In order to use the Software and Service, you must use third-party communication systems such as mobile phones, tablets, or similar devices and their related wireless service. ELD ONE HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF THIRD-PARTY COMMUNICATIONS SYSTEMS OR EQUIPMENT FURNISHED BY COMMUNICATIONS CARRIERS.
Who May Use the Services?
You may use the Services only if you are 18 years or older and capable of forming a binding contract with TMS ONE LLC and are not barred from using the Services under applicable law.
If you want to access and use the Services, you will have to create an account (“Account”). You will need to complete this Agreement. It is important that you provide us with accurate, complete, and up-to-date information for your Account and you agree to update such information to keep it accurate, complete, and up to date. If you do not, we reserve the right to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone, and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether you know about them or not.
You are solely responsible for your interactions with other users of the Services. You are solely responsible for, and will exercise caution, discretion, common sense, and judgment in using the Services. Neither TMS ONE LLC nor its affiliates or licensors is responsible for the conduct of any user of TMS ONE LLC’s Services. Your use of the Services and your use of your data in connection with the Services and performance of and participation in any professional services is at your sole risk and discretion and that 5 TMS ONE LLC hereby disclaims all liability to you or any third party relating there too.
Warnings and Awareness About Connections Between Drivers.
Please carefully consider the parties with whom you choose to connect with and what information you choose to share. TMS ONE LLC’s role in this process is solely to provide the technology and platform that enables these Services, and it is up to you to determine who gets access to the Driver Data. The Service enables a commercial motor vehicle driver (“Driver”) to connect directly with a motor carrier (“Company”), allowing Drivers to automatically share their location information, and other data (“Driver Data”) with the Company. When Drivers connect with a Company through the Services, the Company’s personnel, and other third parties (including but not limited to shippers, receivers, brokers or freight forwarders, etc.), who are also connected to that Company (“Fleet Users”) may access Driver Data for all Drivers, who are connected to that same Company. If a Driver connects with a Company, the Driver should be informed by you that all the Driver’s Data will be automatically shared with that Company and its Fleet Users.
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept checks, Visa, Mastercard, AMEX and debit cards for purchases, but maychange acceptable forms of payment from time to time without notice to you. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you agree that you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order. Nevertheless, in the event the amount quoted is different from the actual price, we will make commercially reasonable efforts to notify you at the time the charge or within a reasonable time thereof.
Invoices are due and payable within the time stated on your invoice. We may charge a late payment penalty of 1.5% per month on undisputed amounts, or the maximum rate permitted by law, whichever is less. Without waiving any of our other rights or remedies, we may refuse additional orders and suspend any services until all overdue amounts are paid in full.
If for invoice payment through QuickBooks chosen method of payment is a Credit Card, a 3.2% + $0.25 for Master, Visa and AMEX Credit Card convenience fee, will be applied and charged.
If for invoice payment through QuickBooks chosen method of payment is a Credit Card, a 3.2% + $0.25 for Master, Visa and AMEX Credit Card convenience fee, will be applied and charged.
Pricing and Payments. Upon acceptance of this Agreement by TMS ONE LLC, you agree to pay TMS ONE LLC, in accordance with the terms set forth in this Agreement, and you authorize TMS ONE LLC, to bill your Payment Method in advance on a periodic basis in accordance with such terms. Please be aware that the pricing for the Services will be governed by the terms in this Agreement, upon acceptance by TMS ONE, LLC
Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer, or other providers of your chosen Payment Method. If we do not receive payment from you, you agree to pay all amounts due on your ELD ONE Account upon demand
Recurring Billing. Some of the Services may consist of an initial period, for which there is a one-time charge or proration of charges, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD
AUTO-RENEWAL FOR SERVICES. You can opt-out of auto-renewal, which can be done by emailing us at [email protected]. If you terminate a Service, your subscription will not be renewed after your then-current subscription term expires
Change in Amount Authorized. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. If the amount to be charged to your Billing Account varies from the amount you preauthorized, due to you adding users(drivers) or vehicles, you agree to pay all charges. Any additional vehicles or users will be bound by the terms of this agreement and contract terms will commence upon the date of their respective activation
Billing Disputes. If you dispute any charges, you must let TMS ONE LLC know within sixty (60) days after the date that TMS ONE LLC, invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. TMS ONE LLC, may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified on the invoice. Past due invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection
Taxes. You are responsible to pay all taxes that we may be required to collect or pay based on providing the Services other than taxes based on our net income
Discontinuation of Services. If you choose to discontinue, cancel, or terminate any Services for which you have agreed to before the end of the subscription term agreed to in this Agreement, TMS ONE LLC, shall have the right to immediately charge the Payment Method associated with your Account remaining portion of the subscription term of this Agreement. If you are renting equipment, your service will remain until equipment will be returned to the address provided to you from TMS ONE LLC, if you don’t want to return equipment TMS ONE LLC will send an invoice for equipment that you are holding in possession and you are required to pay for it
TMS ONE LLC will apply the credit to your account for service that you did not use but you prepaid, TMS ONE LLC is not required to refund the money that you paid for the subscription of the month when you are discontinuing service
Reaffirmation of Authorization. Your non-termination or continued use of any Service reaffirms that we are authorized to charge your Payment Method for that Service. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Service
This Agreement will continue in full force and effect unless and until your Account or this Agreement is terminated
Your rights under this License will terminate immediately without notice if you do not comply with all the terms of this Agreement. You may terminate the License by uninstalling the Software and ceasing to use the Service. You may also cancel your Account at any time by sending an email to us at [email protected] . If you terminate this Agreement early, you will be assessed all the remaining charges for Services for the remaining portion of the subscription term of this Agreement. Upon any termination, discontinuation, or cancellation of Services or your Account, all provisions of this Agreement that should, by their nature, survive termination of this Agreement will survive termination. Such provisions include but are not limited to: Indemnity; Limitation of Liability; Arbitration Agreement, Dispute Resolution and Release; General Terms; and provisions related to ownership
All accrued rights to payment shall survive termination of this Agreement
THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. ELD ONE DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SERVICE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELD ONE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ELD ONE DOES NOT REPRESENT OR WARRANT THAT: (1) THE USE OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED, OR ERROR- FREE OR OPERATE IN COMBINATION WITH ANY OTHER DEVICE, SOFTWARE, SYSTEM, OR DATA; (2) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (3) ERRORS OR DEFECTS WILL BE CORRECTED; OR (4) THE SOFTWARE AND SERVICE WILL ALWAYS BE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS OR THAT IT WILL BE COMPATIBLE WITH ALL THIRD-PARTY DEVICES OR PRODUCTS.
Terms Related to Sale of Hardware Devices
Delivery. TMS ONE, LLC, is not liable for any delayed or late delivery of the Electronic Logging Device, Dash camera, GPS tracker, cables, and accessories (“Hardware”)
If you are returning, or exchanging hardware, by mail to TMS ONE LLC, you are required to provide the tracking number of the package. TMS ONE LLC will not take any action until the package with the belonging tracking number will be delivered to TMS ONE LLC.
Malfunction device exchange. TMS ONE LLC will send information to you about any device sent for exchange due to malfunction, you are required to return the device that was malfunctioning to TMS ONE LLC in 30 calendar days, if TMS ONE LLC does not receive malfunction device back from you in the time specified above, this device will be counted as hardware that you have in possession and you will be charged for it by your subscription plan
Installation. You are solely responsible for installing the Hardware in accordance with the manufacturer’s instructions. You acknowledge that you are aware that in order to install the Hardware you may choose to drill holes in your vehicle, and you agree that TMS ONE LLC, is not liable for any cost, expense or damages arising from the installation of the Hardware
Limited Hardware Warranty; Disclaimers.
ELD ONE will accept returns of the Hardware within 30 days after delivery, as 9 long as the device is in original packaging, no questions asked. We will not accept user-damaged devices.
The Hardware connects to the battery of your vehicle and consumes a small drain on your vehicle’s battery, which may adversely affect your vehicle while not in operation. TMS ONE LLC, is not liable for any consequences of the battery drain associated with the use of the Hardware or the Services.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE HARDWARE IS SOLD TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, FROM TMS ONE, LLC. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TMS ONE, LLC, EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, FLEET USER, COMPANY, OR OTHER THIRD PARTY.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELD ONE BE LIABLE FOR PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT) OR DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, SERVICE OR HARDWARE, EVEN IF ELD ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS LICENSE. IN NO EVENT SHALL ELD ONE’S TOTAL LIABILITY IN CONNECTION WITH THIS LICENSE EXCEED THE ACTUAL AMOUNT PAID TO ELD ONE FOR THE USE OF THE SOFTWARE AND SERVICE GIVING RISE TO THE CLAIM OR IN THE CASE OF THE HARDWARE, THE AMOUNT PAID FOR THE PURCHASE OF THE HARDWARE. THIS LIMITATION MAY NOT APPLY TO CERTAIN JURISDICTIONS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELD ONE, LLC AND YOU
Any cause of action related to the Services, or the terms of this Agreement must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
You will indemnify, defend, and hold harmless TMS ONE, LLC, and its officers, directors, employees, and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to or connected with:
(i) your access to or use of the Services or Hardware;
(ii) your data;
(iii) third parties related to the use of the Software, Service or Hardware; or
(iv) your violation of this Agreement. TMS ONE, LLC, reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If TMS ONE, LLC, decides to control or conduct any such defense, you agree to cooperate with TMS ONE, LLC’s, requests in assisting TMS ONE, LLC’s, defense of such matters
Dispute Resolution and Releases.
PLEASE READ THIS SECTION CAREFULLY AS IT WILL AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
Unless otherwise agreed to by both parties in writing, you and TMS ONE, LLC, agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to your use of the Services, or any use of the Services by a user to whom you provide access to your Account, or arising out of or relating to this Agreement and the Hardware Limited Warranty (“Claim”) will be resolved as follows:
A. Informal Dispute Resolution. Except with respect to Claims, you and TMS ONE, LLC, agree to attempt to resolve any disputes informally, before initiating any arbitration or other formal proceedings, and neither of you may start arbitration or other formal proceeding for at least 30 days after you contact us, or we will contact you regarding any dispute (“Informal Negotiation Period”).
B. Agreement to Arbitrate. If such a dispute is not resolved within 30 days, you or TMS ONE LLC, may initiate a formal arbitration proceeding in accordance with the terms in this section. You and TMS ONE LLC, agree to resolve any Claims relating to or arising from the Services, these Terms or the Hardware Warranty through final and binding arbitration
C. Arbitration Notice. If either you or TMS ONE, LLC, choose to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice”) to the other party. You will send your Arbitration Notice by email to [email protected] and by U.S. mail to:
TMS ONE LLC DBA ELD ONE 1425 N Mclean Blvd, Elgin, IL 60123
D. Arbitration Procedures. Any arbitration proceedings between you and us will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this Agreement which bars class actions. The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert, and other witness and reasonable attorneys’ fees
E. Non-Appearance-Based Arbitration Option. For Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating the arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by theparties
F. Exceptions to the Agreement to Arbitrate. Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either lawsuit solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy, or unauthorized use of the Services. Either you or TMS ONE, LLC, may also assert Claims which qualify for small claims court in the Circuit Court of Cook County, Illinois
G. No Class Actions. Unless you and TMS ONE, LLC, agree otherwise, you may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions, and consolidations with other Claims are not allowed. Neither you nor TMS ONE, LLC, may consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action, or a representative action in arbitration, in court or otherwise.
H. Consent to Jurisdiction. If the provision to arbitrate provided for in this Agreement is found not to apply to you or your Claim, or if you or TMS ONE, LLC, challenges any arbitration award or seeks to have an arbitration award enforced, you and TMS ONE, LLC, agree that any judicial proceeding will be exclusively brought in the state court located in Cook County, Illinois. You and TMS ONE, LLC, consent and agree to both venue and personal jurisdiction in the state court located in Cook County, Illinois
I. Release from Third-Party Claims. Because TMS ONE, LLC, is not a party to any agreements between you and any third parties or involved in the 12 completion of any associated services, in the event that you have a dispute with one or more other Drivers, Fleet Users, or Companies or other third parties, as applicable (each, an “Other Party”), you agree to address such dispute directly with the Other Party in question and you release TMS ONE, LLC (and our officers, directors, agents, investors, subsidiaries, and employees from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute
By accepting this License and using the Software and Service, you acknowledge and confirm that you are a bona fide shipper, third-party logistics provider, freight forwarder, intermodal or rail company or motor carrier of legal age to operate and to enter into this Agreement.
U.S. Government Users.
For U.S. Government agencies or contractor licensees, use, duplication or disclosure of the Software is granted with “Restricted Rights” subject to the restrictions set forth in this License and as provided in FAR 52.227.19(c)(2) or subparagraph (c)(1)(ii) of the rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR Supplement.
The Service is controlled and operated from within the United States and intended for use within the United State. ELD ONE makes no representations that the Software or Service is appropriate in locations outside the United States. Those who choose to access the Software or Service from other locations are responsible for compliance with applicable laws.
This Agreement is the entire agreement between you and ELD ONE, and supersedes all prior agreements, negotiations, or other communications between you and ELD ONE, whether oral or written, with respect to the subject matter of this License. You may not export or re-export the Software without: (1) the prior written consent of ELD ONE; and (2) complying with applicable export control laws and obtaining any necessary permits and licenses. In the event that any provision of this License is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this 13 License; and (b) the validity and enforceability of all of the other provisions, shall in no way be affected or impaired by that change. You may not assign this Agreement or the License without the prior written consent of ELD 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. ELD 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. The 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. ELD 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.
Governing Law. This Agreement and the relationship between you and TMS ONE, LLC, shall be governed by the laws of the State of Illinois
Notices. Any notices or other communications provided by TMS ONE, LLC, under this Agreement, including those regarding modifications of this Agreement, will be given by TMS ONE, LLC: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted
Acknowledgment. You understand and agree that: (i) the Service is an information tool only and is not a substitute for competent management and oversight of your fleet, transportation system, and personnel; (ii) the Service depends upon data being transmitted over the Internet, your network, GPS satellites, and third-party carrier networks, and that we have no control over the functioning of the Internet, your network, GPS satellites, or any carrier’s network, and that all such means are necessarily imprecise and prone to variance; (iii) you alone are responsible for acquiring and maintaining your fleet, network, Internet access, and your entire physical and technological infrastructure; and (iv) the Customer’s reports that are kept by the Service are based on mutual entries by the Customer, Customer’s Drivers, and other users and ELD ONE is not responsible for the accuracy of the information and use of the Service
Changes and Modifications to Terms of Service
We may modify these terms at any time, at our sole discretion. If we do so, we will let you know either by posting the modified terms on the Site or through other communications. It is important that you review the modified terms, because if you continue to use the Services after we have let you know that the terms have been modified, you are indicating to us that you agree to be bound by the modified terms. If you do not agree to be bound by the modified terms, then you may no longer use the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.