Truckloadrate.com Data Access Agreement

Last updated: April 1, 2021

This Truckloadrate.com Data Access Agreement (the “Agreement”) forms a binding contract between (a) on the one hand, Trimble Transportation Enterprise Solutions, Inc., 6085 Parkland Boulevard, Mayfield Heights, OH 44124 (“Trimble,” “we,” “us,” or “our”), and (b) on the other hand, the person electronically accepting this Agreement if acting in an individual capacity, otherwise the company on whose behalf you are accepting this Agreement (“User,” “you,” or “your”) (each, a “Party,” and together, the “Parties”).

By accepting this Agreement electronically, the person electronically accepting this Agreement represents that he/she is duly authorized to accept this Agreement (either on his/her own behalf or as an authorized representative of the company registering for an account), and has read, agrees to and accepts this Agreement on such behalf. If you do not agree with these terms, or are not authorized to accept this Agreement on behalf of your company, do not accept this Agreement, create an account, or use this service. By accessing this service or any information or data through this service, you further acknowledge your acceptance of this Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Your Account. To use the truckloadrate.com online portal and service, including Freight Rate Search and the Truckload Rate Index (the “TLR Service”) and transportation-related information, charts, trends, metrics and analytics accessed through the TLR Service (collectively, “TLR Data”), you must have a valid annual or monthly subscription to the TLR Service paid by credit or debit card. Your monthly or annual subscription (each such monthly or annual subscription period, a “Subscription Period”) will begin, and you will be charged, as of the first day of the first full calendar month occurring on or after your sign-up date; you will not be charged for any period of time between your sign-up date and the beginning of the Subscription Period. For example, if you sign up for the TLR Service in November, your first Subscription Period will begin on December 1, unless you cancel prior to December 1. Subscription fees are charges to your card at the start of each Subscription Period. Your subscription will automatically renew, and your card will be automatically charged at the start of each Subscription Period for that period’s subscription fee, until you cancel. You can cancel your subscription through the truckloadrate.com website. You may also incur a la carte fees for certain optional requests and actions available to you within the TLR Service, and you agree that we may charge your card for each such a la carte fee incurred by you through the TLR Service. Your subscription fee does not include applicable taxes and fees, which will be charged to you in addition to your subscription fee, and you agree to pay such applicable taxes and fees. We will inform you as to the a la carte TLR Service charge prior to you submitting the optional request or action. You agree to keep your payment information current; if we are unable to charge your payment information for any renewal, we may terminate your subscription and this Agreement. You are liable for all subscription charges, and applicable taxes/fees, incurred. You must inform us of any changes to your account information (including but not limited to billing address, email, telephone, and billing information.

2. Grant of Access. The TLR Service and TLR Data are licensed to you and not sold. Subject to your compliance with the terms of this Agreement, we grant to you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable right to access and use the TLR Service and TLR Data for your own internal business purposes. Each person with access to the TLR Service under your account must have unique login credentials. You and your personnel shall keep all login credentials confidential, and shall not share login credentials between employees, representatives or other personnel. You will immediately notify us if you believe any login credentials for your employees may have been disclosed or compromised, and you will hold us harmless from and against any unauthorized and/or harmful access to your account(s) and/or data using login credentials issued to or by you.

3. Restrictions. You covenant that you will not (i) copy, modify, tamper with, alter, create derivative works of, sublicense, sell, lease, loan, rent, distribute, convey, pledge as security or otherwise encumber, or act as a service bureau with respect the TLR Service; (ii) reverse engineer, decompile, translate, adapt or disassemble the TLR Service in an attempt to reconstruct or discover the source code or algorithms thereof, except and only to the extent expressly permitted by law; (iii) remove, delete or alter any trademarks or any copyright, trademark, patent or other intellectual property rights notices from the TLR Service or any TLR Data; (iv) use the TLR Service and/or TLR Data in violation of applicable laws, rules, regulations, codes or ordinances; (v) attempt to access TLR Data by any means other than the methods published through the TLR Service (for the avoidance of doubt, you will not use or attempt to use automated methods to access TLR Data); (vi) reproduce the TLR Data except to the extent necessary for your internal business purposes; (vii) share or allow any third party to access or use TLR Data; (viii) sublicense, assign, transfer, sell, share, rent, distribute, lease, or otherwise provide, grant access to or make available TLR Data (in whole or in part) on a standalone basis and/or to any third party; or (ix) cause or authorize any third party to do any of the foregoing.

4. Ownership; Aggregate Data. You agree that all right, title and interest in and to the TLR Service and TLR Data belongs exclusively to, and shall remain with, us, our affiliates, and our respective licensors or partners. You shall take reasonable precautions to prevent unauthorized access and use of TLR Data in your possession or control. We reserve all rights in and to the TLR Service and TLR Data not specifically and expressly granted to you under this Agreement. Further, to the extent you provide data to us in connection with the TLR Service, you give us and our Affiliates the royalty-free, perpetual right (i) to use such data to improve, enhance, and support the nature, quality and features of our and our Affiliates’ products, software and services provided we keep such data confidential, and (ii) to aggregate and anonymize such data and to use such aggregated and anonymized data, as well as data regarding your use of the TLR Service and summary or derivative information based thereon, for our and our Affiliates’ analytical and other business purposes during and following the term of the Agreement, provided that you will not be identified as the source of such information.

5. Termination. You may terminate this Agreement as of the end of the then-current subscription billing period by cancelling your subscription through the TLR Service. Upon notice of termination, no additional charges will be made to your payment card, and your account will remain active until the end of the then-current subscription billing period. We may terminate your account and this Agreement at any time, with or without notice to you, if you violate any of the terms of this Agreement. Termination will not limit any of our rights or remedies at law or in equity. Any provision of this Agreement which by its nature must survive the termination of this Agreement in order to give effect to its meaning shall survive such termination. Upon termination of this Agreement for any reason all login credentials and rights granted to you under this Agreement will terminate, and you must cease using, destroy, and permanently erase from all devices and systems you directly or indirectly control all login credentials and all TLR Data.

We shall also have the right to suspend your access to the TLR Service and your ability to use TLR Data if the acts and omissions of you or your personnel threaten the integrity or security of our systems, networks or data, provided that we shall promptly restore your access once such acts or omissions have ceased or the corresponding integrity or security concerns have otherwise been mitigated (unless this Agreement has been terminated).

6. Warranties and Disclaimer. THE TLR SERVICE AND THE TLR DATA IS PROVIDED TO YOU “AS-IS” AND WE SPECIFICALLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. YOU ACKNOWLEDGE THAT TLR DATA IS DEPENDENT UPON DATA PROVIDED BY THIRD PARTIES, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES AND NO ENDORSEMENTS OR CERTIFICATIONS OF ANY DATA RECEIVED FROM ANY SUCH THIRD PARTIES. WE SHALL HAVE NO LIABILITY FOR ANY LOSSES, COSTS, LIABILITIES, DAMAGES, OR EXPENSES SUFFERED OR INCURRED BY YOU, ANY OF YOUR CUSTOMERS, OR ANY OTHER PERSON AS A RESULT OF INACCURACY IN OR OF THE TLR SERVICE, THE TLR DATA, OR ANY SOURCE DATA PROVIDED TO OR USED IN CONNECTION WITH THE TLR DATA. WE MAKE NO WARRANTY OF ANY KIND THAT THE TLR SERVICE, TLR DATA, OR ANY RESULTS OF THE USE THEREOF WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE ACCURATE, COMPLETE, OR ERROR-FREE. IF YOU ARE DISSATISFIED WITH THE TLR SERVICE, TLR DATA, AND/OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING TLR SERVICE AND TLR DATA, AND TO TERMINATE THIS AGREEMENT.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRIMBLE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, HAVE, AND SUCH PARTIES HEREBY DISCLAIM, ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE TLR SERVICE OR TLR DATA FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; AND (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE TLR SERVICE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL, IN NO EVENT, EXCEED $100.00 IN AGGREGATE.

7. Changes to this Agreement. We reserve the right to amend or modify this Agreement, or any portion of this Agreement. In the event of an amendment or modification, we will notify you of the updated version of the Agreement. If you do not want to agree to the updated version, you must terminate this Agreement within ten (10) calendar days of the date you receive notice of the change(s).  Otherwise, your continued use of the TLR Service and/or TLR Data constitutes your agreement to such changes, and your continued right to access and use the TLR Service and TLR Data shall constitute good and valuable consideration for such changes. The prior version of the Agreement will be superseded by the updated version of the Agreement.

8. Other. This Agreement sets forth the entire understanding between the parties in connection with this Agreement, and supersedes all prior or contemporaneous written or oral proposals, communications, agreements, negotiations, and representations regarding its subject matter. No amendment to this Agreement will be valid unless made in writing and physically signed by both parties. You may not assign or otherwise transfer this Agreement to any third party without our express prior written consent. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their successors and permitted assigns. This Agreement will be governed exclusively by, and construed and enforced exclusively in accordance with, the laws of the State of Ohio, United States of America, without regard to or application of its conflicts-of-laws provisions. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of the United States District Court for the District of Ohio or any state court sitting in Cuyahoga County, Ohio, and each party irrevocably consents to the jurisdiction and venue of said courts and waives any right to object thereto. No waiver of any provision or breach of this Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. Regardless of which party may have drafted this Agreement, no rule of strict construction shall be applied against either party. In the event any portion of this Agreement is held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original intent of the parties, or if such construction cannot be made, such provision or portion thereof will be severable from this Agreement, provided that the same will not affect in any respect whatsoever the remainder of this Agreement. Neither Party will be liable for a failure to perform hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. Any notice to us will be in writing, will reference this Agreement, and will be personally delivered or sent by nationally or internationally recognized express courier to us at the address set forth above, ATTN: Legal. Notice will be deemed effective upon delivery. We may send you notices electronically via your account or the contact information provided by you in your account. Each party is an independent contractor of, and is not an employee, agent or authorized representative of, the other party.