These Uber Freight TMS Terms of Use (this “Agreement”) are entered into by and between the company accepting this Agreement (“Customer”) and Uber Freight US LLC, a Delaware limited liability company and licensed freight broker (“Uber Freight”). Capitalized terms used herein shall have the meaning ascribed to them in this Agreement.
 

1. Scope.  This Agreement sets forth the terms under which Customer may utilize (i) Uber Freight’s transportation management system (the “TMS”) and (ii) Uber Freight’s and its affiliates’ freight brokerage services and any other related services and products (the “Uber Freight Service”, and together with the TMS, the “Services”). By accessing or using the TMS or the Uber Freight Service, Customer confirms its agreement to be bound by this Agreement. Customer’s use of the Services is subject to this Agreement, as it may be, amended, modified or updated by Uber Freight from time to time, effective upon posting of an updated version of this Agreement at the TMS (it being understood that this Agreement will be posted and publicly available). Uber Freight will provide Customer notice of any such amendments, modifications or updates through the email Uber Freight has on file, or through the TMS, or by updating the date at the top of these Uber Freight TMS Terms of Use. Continued use of the Services after any such amendments, modifications or updates shall constitute Customer’s consent to such changes.
   
2. TMS Access Grants.  Customer and any individual users authorized by Customer to use this TMS (“Users”) are hereby granted a non-exclusive, non-transferable, non-sub-licensable right to access and use the TMS for the purpose for which it is made available to Customer and otherwise in accordance with the terms of this Agreement.
   
3. Restrictions.  Customer agrees to, and will cause all Users to, use the TMS as set forth in this Agreement. Uber Freight reserves the right to suspend or terminate use of the TMS of Customer and/or any Users for violations of this Agreement. Customer shall not, and shall not authorize others to: (i) remove any copyright, trademark or other proprietary notices from any portion of the TMS; (ii) reproduce, modify, copy, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit any portion of the TMS except as expressly permitted by Uber Freight; (iii) disassemble, reverse engineer, de-compile or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the TMS; (iv) reproduce and/or otherwise use the TMS or any of the TMS content for the purpose of developing, training, testing, or improving artificial intelligence or machine learning algorithms or models, or any form of automated decision-making systems; (v) create Internet “links” to or from the TMS, or “frame” or “mirror” any content which forms part of the TMS (other than on Customers’ own internal intranets); (vi) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the TMS or unduly burdening or hindering the operation and/or functionality of any aspect of the TMS; (vii) attempt to gain unauthorized access to or impair any aspect of the TMS; (viii) upload personally identifiable information; (ix) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (x) knowingly interfere with or disrupt the integrity or performance of the TMS or the data contained therein; (xi) attempt to gain unauthorized access to the TMS, computer systems or networks related to the TMS; or (xii) interfere with another user’s use and enjoyment of the TMS.
   
4. Uber Freight Responsibilities.  Uber Freight shall: (i) use commercially reasonable efforts to maintain the security of the TMS; (ii) provide support to each of Customer’s Users consisting of telephone help desk or online support services via the TMS during normal business hours (between the hours of 7:00 am and 5:00 pm CT on business days); and (iii) use commercially reasonable efforts to make the TMS generally available 24/7 (24 hours a day, 7 days a week), except for: (a) scheduled maintenance, which is from Saturday 8:00 pm to Sunday 6:00 am CT, (b) planned down time, which shall be any period outside of normal business hours for which Uber Freight gives eight hours or more notice that the TMS will be unavailable; or (c) down time caused by circumstances beyond Uber Freight’s reasonable control, including without limitation, force majeure circumstances.
   
5. Service Providers; Customer-Carriers.  In connection with using the Services, Customer may use third-party motor carriers, property transportation brokers, freight forwarders, intermodal marketing companies, ocean, rail, parcel and air carriers, warehouse operators and intermediaries, entities providing sorting of parcels, and other providers contracted by Uber Freight and/or its affiliates (collectively called “Service Provider(s)”) or such providers who are contracted with Customer (“Customer-Carriers”). Customer will be the contracting party with Customer-Carriers and be responsible for the contracts, rates, negotiations, capacity commitments, vetting procedures, and setting of service standards with its carriers. Neither Uber Freight nor any of its affiliates will have any liability to Customer for any cargo loss, damage or delay. Uber Freight is not a motor carrier. The applicable Service Provider or Customer-Carrier shall be solely responsible for (i) controlling the method, manner, and means of accomplishing the transportation services, (ii) the acts and omissions of each of its employees, agents, contractors, independent contractors, subcontractors and other service providers, (iii) complying with all applicable laws and regulations, and (iv) any cargo loss or damage in accordance with applicable law and the relevant contractual obligations. Customer agrees that it will not tender to Uber Freight for brokerage services any cargo containing any household goods, illegal goods or garbage, refuse, or trash. Customer agrees that in the event any shipment it tenders or causes to be tendered to Uber Freight is classified as hazardous materials by the U.S. Department of Transportation or a similar designation from another governmental authority, such goods when tendered shall be properly packaged, labeled and transportable under applicable rules, regulations, and laws of federal, state and local jurisdictions through which they are to be transported.
   
6. Proprietary Rights.  In providing the TMS, Uber Freight utilizes (i) Uber Freight’s and/or its affiliates’ names, logos, domain names, product names associated with the TMS and other trademarks; (ii) certain visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Uber Freight Technology”) and such Uber Freight Technology is covered by intellectual property rights owned or licensed by Uber Freight and/or its affiliates (“Uber Freight IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the Uber Freight IP Rights are granted to the Customer, and all such rights are hereby expressly reserved. Customer shall not disclose all or any portion of the TMS to any third party or entity and shall be responsible for any disclosures by its employees, former employees, agents and contractors.
7. Suggestions, Ideas and Feedback; Customer Inputs. Customer may, but is not obligated to, provide to Uber Freight any suggestions, comments and feedback regarding Uber Freight’s products and services (collectively, “Customer Feedback”). Uber Freight may use and include any Customer Feedback that Customer voluntarily provides to improve Uber Freight’s products, technologies and services. Information submitted by Customer into the TMS (“Customer Inputs”) remains Customer’s property. Uber Freight and its affiliates may use Customer Inputs for business purposes including to provide services under this Agreement. Customer Inputs may be aggregated and anonymized, and incorporated with third party data, in order to provide market intelligence and other data analytic services. Accordingly, with respect to Customer Feedback and Customer Input (collectively, “Customer Content”), Customer grants Uber Freight a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Customer Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from Customer, and without the requirement of payment to Customer or any other person or entity.
   
8. Fees and Taxes. Uber Freight may charge fees in connection with the provision of the Services. All fees under this Agreement are exclusive of any applicable taxes. If any tax, duty or other governmental charge is imposed as a result of Customer’s use of the Services, then Customer shall be responsible for such tax. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and Uber Freight shall not be required to invoice Customer. If Customer desires for Uber Freight to collect the tax, Customer shall advise Uber Freight of the applicable jurisdiction and percentage. Further, Customer expressly authorizes Uber Freight to determine and include such taxes on behalf of Customer and Customer hereby acknowledges and agrees Uber Freight will have no liability for the accuracy of such determination.
9. Payment Terms. Uber Freight will invoice Customer electronically. Customer will pay invoices within 30 days of the invoice date via ACH bank wire transfer. Payments, for invoices not received within fifteen (15) days of invoice due date are subject to a late fee of $10.00 U.S. per invoice plus interest at the rate of 1.5% per month, unless limited by a legal maximum of less than 1.5% If Customer’s account is 30 days or more overdue, in addition to any of its other rights or remedies, Uber Freight reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.
   
10.  Payment Terms – Freight Payment of Customer-Carriers: If Customer is using Uber Freight’s freight payment services for Customer-Carriers, then Customer shall require all Customer-Carriers to submit invoices for transportation of Customer’s freight and related services to Uber Freight and the terms of this Section 10 will apply.
    • i. General Terms. Except as set forth in clause (ii) below, Uber Freight shall pay Customer-Carrier invoices within thirty (30) calendar days of receipt of invoice; provided that Uber Freight has received the related funding from Customer.  
    • ii. Special Terms. In the event that Customer has payment terms with a Customer-Carrier that differ from those set forth in section clause (i) above, the parties shall mutually agree on terms that will maintain a cash-neutral position for Uber Freight. 
    • iii. For any rate agreements or charges contracted directly by Customer with Customer-Carrier, Uber Freight will audit the charges indicated in the Customer-Carrier’s invoice against the rates and accessorials submitted in writing and approved by Customer to Uber Freight. In the event of discrepancy, Uber Freight will pay the lesser of authorized or invoiced.
11.  Warranties. Each party represents and warrants that such party has the full right, power and authority to enter into this Agreement and such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party. Customer represents and warrants that: (a) Customer has all rights and permissions necessary to provide Uber Freight with any information provided to Uber Freight hereunder in connection with the Services; (b) Customer is in compliance, and shall remain in compliance during the term of this Agreement, with all applicable local, city, municipal, provincial, state, federal, national, and international laws, rules and regulations; and (c) Customer has all necessary consents and authorizations from its customers (or other parties as applicable) to tender shipments tendered under this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UBER FREIGHT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. UBER FREIGHT HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, UBER FREIGHT GRANTS NO WARRANTY THAT THE TMS IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR SHALL PROVIDE SPECIFIC RESULTS.
    
12.  Limitation of Liability; Waiver of Consequential Damages. Except for liability arising out of Customer’s payment obligations under this Agreement, in no event shall (i) either party’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the amounts actually paid by Customer under this Agreement during the one (1) year period immediately preceding the date the cause of action arose; and (ii) either party have any liability to the other party for any indirect, special, incidental, consequential, punitive or exemplary damages, including, but not limited to, lost profits, loss of data, loss of use, costs of procurement of substitute goods or services, or damages from business interruption, with respect to any matters arising from or related to this Agreement regardless of whether the party to be charged had notice of the possibility of such damages.
    
13.  Termination. Either party may terminate this Agreement at any time, with or without cause, on five days’ written notice to the other party. Notwithstanding the foregoing, either party may terminate this Agreement upon written notice if the other party files a bankruptcy petition or has a bankruptcy petition filed against it, or is required to cease and desist from the performance of this Agreement by reason of any order of any court, commission or public authority.
    
14.  Confidentiality.   
    • a. “Confidential Information” means any confidential, proprietary and other non-public information disclosed by or on behalf of one party (the “Disclosing Party”) to the other party or any of its Representatives (the “Receiving Party”), whether disclosed verbally, in writing, or otherwise. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
      
    • b. Each Receiving Party agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Disclosing Party’s Confidential Information.
      
    • c. Each Receiving Party will ensure that Confidential Information will only be made available to Receiving Party’s affiliates and their respective officers, directors, employees and agents who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Receiving Party will cause its Representatives to comply with the terms of this Agreement and will be responsible for any breach of this Agreement by any of its Representatives.
      
    • d. The foregoing prohibitions on use and disclosure of Confidential Information will not apply to the extent: (i) the Disclosing Party has authorized such use or disclosure in writing or (ii) a Receiving Party is required to disclose certain Confidential Information of the Disclosing Party as a matter of law or by order of a court, provided that the Receiving Party gives the Disclosing Party prior written notice of such obligation to disclose and reasonably assists the Disclosing Party (if requested) in obtaining a protective order prior to making such disclosure.
      
    • e. The restrictions in this Section 14 shall survive for two years beyond the termination of this Agreement.
      
    • f. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 14, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
      
15.  Privacy Notice. The Services and Customer’s use thereof are subject to Uber Freight’s Privacy Notice, as may be modified or updated by Uber Freight from time to time, effective upon posting of an updated version of the Privacy Notice at https://www.uberfreight.com/privacy-policy/ or such other location where the Privacy Notice may be located from time to time.
    
16.  Force Majeure.  Neither party shall be liable to the other for any failure to perform under this Agreement due to acts of God, acts of government, war, fires, floods, explosions or other natural catastrophes, civil disturbances, riots, strikes or other labor problems, unusually severe weather such as tornadoes, or failures or fluctuations in electrical power, heat, light, air conditioning, telecommunications lines or equipment, or failure in computer software, hardware or related materials not within a party’s possession or reasonable control. In such event, the performance of the affected party’s obligations shall be suspended during, but not longer than, the period of existence of such event and the period reasonably required to perform the obligations. In such event, the affected party shall notify the other of such event and shall use reasonable efforts to minimize the consequences of such event. This Section 16 does not excuse any failure to pay for services rendered.
    
17.  Independent Contractor.  This Agreement is not and shall not be construed as an agreement of joint venture, partnership, agency, franchise or employment between the parties or their respective employees. Each party has sole authority and responsibility to employ, discharge, discipline and otherwise control and direct its employees, and neither party, nor any of their employees, are or shall be deemed to be employees of the other. Each party agrees to comply with all laws, rules, rulings, regulations, standards and ordinances applicable to them as such employers. Each party acknowledges and agrees that each is an independent contractor whose operations are independent, separate, and apart from those of the other.
    
18.  Assignment and Binding Agreement.  Except as expressly set forth in this Agreement, neither party may assign its rights or delegate or subcontract its duties and obligations under this Agreement to any other person or entity without the prior written consent of the other; provided, however, that Uber Freight may assign this Agreement to an affiliate or a successor-in-interest upon notice to Customer. This Agreement shall inure to the benefit of and be binding upon each party and their respective heirs, administrators, successors, permitted assigns and legal representatives.
    
19.  Choice of Law. This Agreement, including its formation, application, performance, enforcement, the relationship between the parties, and any claims, demands, causes of action and disputes in any way arising out of or related to it, shall be governed, construed and interpreted under the substantive law of (and the law of remedies, if applicable) and the parties agree to the jurisdiction of the State of Delaware except to the extent that mandatory federal laws, rules and regulations of the United States govern this Agreement.
    
20.  Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof; provided that if Customer and Uber Freight are parties to one or more written and fully executed transportation management, shipper-broker agreements or other agreements relating to this TMS (each, a “Separate Agreement”), then, to the extent this Agreement conflicts with or lacks provisions of the Separate Agreement, such provisions of the Separate Agreement will apply in addition to the non-conflicting provisions of this Agreement.