Trux Platform Agreement Terms and Condition of Use

PREAMBLE

This agreement (“Agreement”) governs the relationship between the entity or person that accepts the terms and conditions of this Agreement by signing or accepting this Agreement (“You,” “Your” or “User”) and Trux, Inc. (“Us,” “Our,” “We” or “Trux”). Once agreed by You, Trux will provide You with access to the Trux Platform (as further defined herein), which will facilitate Your ability to create and assign work, post work and/or accept work on the Trux Platform, as further described below and, if applicable to You, in one or more Schedules attached to the end of this Agreement (the “Services”).

For the purposes of this Agreement, You and Trux may each be referred to as a “Party” and collectively as the “Parties.” Authorized Account Users of the Services are not themselves a ‘party’ to this Agreement but are bound by the Terms Conditions of use of the Trux Platform and Services appearing in this Agreement, and must be agreed to by all users upon first login to the Trux Platform (and are otherwise available HERE).

You may not access the Services or accept this Agreement if you are not at least 18 years old. If you do not agree with all the provisions of this Agreement, you must not access or use the Trux Platform or the Services. By entering this Agreement, you represent that you are eligible to enter this Agreement and that you will abide by and agree to the terms and conditions of this Agreement.

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions shall apply to ALL Users of the Trux Platform, regardless of Role or the type of transaction pursued by the User on the Trux Platform.

1. DEFINITIONS

“Account” refers to Your account details that You set up with Us when you start to use the Trux Platform.

“Affiliate” means with respect to any person or entity, any other entity controlling, controlled by, or under common control with such person or entity at the time in question. For the purposes of this definition, control means (i) the possession, directly or indirectly of the power to direct, or cause the direction of the management or policies of such entity, whether through the exercise of voting power, by contract or otherwise, or (ii) ownership of more than 50% of the equity interest of such entity.

“Applicable Law” refers to all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances of the United States of America, governing User’s activities that occur on, using or are facilitated in any way by the Trux Services and/or the Trux Platform including, as applicable all laws and regulations relating to the operation, maintenance and use of motor vehicles, heavy equipment and the transport of cargo.

“Authorized Account User(s)” refers to User(s) who are employees or designated agents of another User. Authorized Account Users must be approved by Trux and must sign up for a User “Account.”

“Broker” refers to a legal entity that subcontracts Shipment Assignments to other Operators.

“Broker-Operator” refers to an Operator that is also a Broker.

“Company Contracted Vehicle” refers to a vehicle operated and owned by a third-party service provider that has a direct contractual relationship with a Customer, and not with Trux. Except as may be expressly provided herein, Trux is not responsible for the terms, conditions or obligations set out in agreements involving Company Contracted Vehicles beyond providing the specified Services to You as outlined in this Agreement. Such transactions are governed by the terms and conditions set out in Schedule A in respect to a Customer assigning Shipment Assignments to Company Contracted Vehicles, and Schedule D in respect to Drivers of Company Contracted Vehicles.

“Company Contracted Operator” refers to a third party service provider that directly contracts with the Customer to provide Company Contracted Vehicles.

“Company Owned Vehicle” refers to a vehicle of transportation owned by a Customer.

“Customer” refers to a User on the Trux Platform that is provisioning Trux Services to manage Private Carriage Shipments and/or post Shipment Assignment to find additional transportation capacity. Users on the Trux Platform acting in the role of Customer agree to the terms and conditions of this Agreement, including the terms and conditions set forth on Schedules A and B.

“Driver” is an individual that operates a vehicle.

“Non-Asset Broker” is a Broker that does not own any vehicles but subcontracts Shipment Assignments to other Operators.

“Operator” refers to a person, sole proprietor or business entity that manages, has direct control, or operates vehicles (i.e., Drivers) for the purpose of transporting materials. Operators who contract for Private Carriage Shipments agree to the additional terms in Schedule A and D, and Operators who contract with Customers via the Trux Marketplace agree to the additional terms in Schedule C.

“Order Form” refers to the document memorializing the details between Customer and Trux, such as fees, number of Authorized Account Users, and additional terms and conditions related to the use of the specific Services sought by the User. The terms of the Order Form are binding upon its execution by both Trux and the User.

“Private Carriage Shipment” refers to a Shipment Assignment that is undertaken by a Company Contracted Vehicle or a Company Owned Vehicle. Customers that assign Private Carriage Shipment Assignments are bound by the terms of Schedule A.

“Rate” refers to the rate information that a User enters into a Shipment Assignment.

“Role” refers to the type of User on the Trux Platform. Roles include, for example, Customer, Operator, Driver, and Broker.

“Shipment Assignment” refers to a Trux Platform transaction for the transport of materials posted or assigned by a Customer.

“Shipment Cost” refers to the amounts payable and paid to an Operator for completing a Shipment Assignment.

“Service Fee” refers to the fees payable to Trux for Services rendered by Trux to a Customer.

“Services” refers to the services available to a User on the Trux Platform. The exact Services a User may enjoy depends upon the User’s Role and the Services identified in this Agreement or an Order Form signed between a Customer and Trux.

”Trux Platform” refers to the technology platform provided by Trux that connects Users that operate Vehicles to Customers who seek to transport cargo. The Services may include the ability for Users to manage, communicate, and execute logistics management activities with vehicles via a Trux managed and operated website at www.truxnow.com and successor websites and associated mobile applications that include, but are not limited to, the TruxNow and Trux Drive mobile applications and any other Trux branded or operated mobile applications.

“Trux Services” or “Services” refers to the services made available by Trux via the Trux Platform to a User. Such Services may include, not limited to, Trux Digital Dispatch Service, Trux Marketplace Service, Trux Fleet Manager Service, Trux Order Delivery Tracker Service, Trux Chrome Experience, and Trux Analytics. The User’s access to a specific Service depends upon the User’s Role, as memorialized in this Agreement or an executed Order Form.

“Trux Support” or “Trux Support Team” means application support personnel that can be contacted at support@truxnow.com or by phone on 1-800-485-1304 within the United States. Trux Support operates from 7:00 AM until 8:00 PM United States Eastern Time (as per the Commonwealth of Massachusetts), Monday to Friday, excluding any federally recognized holidays.

2. TRUX SERVICES

2.1 ACCESS RIGHTS TO PLATFORM

Trux grants to User and, if applicable, User’s Authorized Account Users who agree to this Agreement, access to the Services for User’s internal business purposes in accordance with the terms and conditions of this Agreement. Without limiting the foregoing, under no circumstances may User or any Authorized Account User use the Services to re-sell services in competition with Trux, or to sell Trux Services to a third party unless otherwise authorized by Trux.

2.2 ADDITIONAL AUTHORIZED ACCOUNT USERS

Provided that each additional Authorized Account User agrees to this Agreement, Customer may extend the access rights granted in the previous section to User’s Affiliates and its or their respective employees and contractors. For purposes of this Agreement, the signatory to this Agreement shall be responsible for the acts and omission of its Authorized Account Users.

2.3 TRUX GENERAL DISCLAIMER OF RESPONSIBILITY AND WARRANTY

Beyond provision of the Trux Platform and Services described herein Trux makes no representations or warranties as to the services provided by third parties who may also be using our Trux Platform. We do not guarantee the fitness, reliability, or skills of any User, or in particular, any carrier or Operator of any vehicle, nor do We guarantee that any Shipment Assignment you post on our Trux Platform will be accepted, and even if accepted, that it will be fulfilled or that your cargo or materials will be safely transported.

2.4 TRUX NOT RESPONSIBLE FOR DATA OR USE OF THE TRUX PLATFORM

Other than safeguarding any personal information You share with us (as further described in our Privacy Policy and, as applicable, our California Privacy Notice) and providing the Trux Platform and Services for Your use, Trux shall have no responsibility for the data that You the User or any other User (regardless of Role) enters into the Trux Platform, including, for example, data that is part of a Shipment Assignment or Private Carriage Shipment. Trux also cannot guarantee and does not represent or warrant as to the accuracy, completeness or timeliness of any data that Users enter onto the Trux Platform unless such data is directly captured natively by the Trux Platform. Your use of the Trux Platform is at your own risk, regardless of your Role or the activities and functions used by You.

2.5 PROVISION OF ADDITIONAL SERVICES AND SUPPORT SERVICES

Upon request, Users may seek additional support and services from Trux in the nature of training, technical and administrative support beyond what is typically provided by Trux to Users. Such “Additional Services” shall be contracted by using an Order Form executed by the parties hereto.

2.6 USER ROLES AND ADDITIONAL TERMS AND CONDITIONS AS TO USE OF SERVICES

Users and Authorized Account Users may have one or many Roles when using or accessing Services via the Trux Platform. Depending on the User’s Role, the User may be subject to additional terms and conditions as set out in one or more Schedules attached to this Agreement. Should there be a conflict between the terms and conditions set out in the Schedules and the main Agreement, the terms of the relevant Schedule shall control. The ‘relevant schedule’ shall be the schedule governing the User’s activities.

3. OWNERSHIP RIGHTS; DATA; CONSENT TO MESSAGING

3.1 THE TRUX SERVICES AND PLATFORM BELONG TO US

The Trux Platform, including all software and Services provided hereunder, and all rights therein are and shall remain Trux’s property or the property of Trux’s licensor(s) (as applicable). Neither this Agreement nor Your use of the Services convey or grant to You or any Authorized Account User(s) any right, title, or interest (i) in or related to the Platform or the Services, except for the limited access right described above; or (ii) the Trux company names, logos, product, service names, trademarks or service marks, or those of Trux’s licensor(s) that may appear as part of the Services.

3.2 WE RETAIN RIGHTS TO USAGE INFORMATION

Trux may monitor User’s use of the Services. Trux may collect and compile data and information related to the use of the Services (“Usage Information”). As between Trux and You, all right, title and interest in Usage Information and all intellectual property rights therein, belong to and are retained solely by Trux. Trux retains the right to use and publicize the Usage Information (without disclosing the identity of Customer or any particular individual) in compliance with Applicable Law and the terms of the Trux Privacy Policy, where said Policy may be amended from time to time.

3.3 USER FEEDBACK

If User sends or transmits any communications or materials to Trux by mail, email, telephone, or otherwise, regardless of the content of those communications (“Feedback”), Trux is free to retain and use such Feedback without further consultation, attribution, or compensation to You. By agreeing to the terms of this Agreement, You hereby assign to Trux all right, title, and interest in, and waive all rights you might otherwise have in your Feedback.

3.4 MESSAGING, NOTIFICATIONS AND CHAT FEATURE.

By creating an Account, You agree that Trux and the Trux Platform may send electronic communications to You as part of the Services provided hereunder. Such messages may be in the form of application notifications, text messages sent as part of an SMS system, or sent and received via chat functionality that may be present in one or more of the Trux applications.

3.4.1 OPTING OUT OF TEXT MESSAGING

Any User may opt-out of receiving text (SMS) messages from Trux at any time by replying ‘NO’ to the initial SMS message or ‘STOP’ to an SMS message or by emailing support@truxnow.com. You expressly acknowledge that opting out of receiving text (SMS) messages may impact the use and functionality of the Services.

3.4.2 CHANGING OR STOPPING NOTIFICATIONS

Users may deselect, if applicable, specific types of in-application notifications and messages under settings within the various Trux applications, or by emailing support@truxnow.com.

3.4.3 CHAT FUNCTIONALITY IS FOR BUSINESS PURPOSES ONLY

Certain Trux applications available through Our Services include ‘chat’ functionality. You agree to use in-application text chatting capabilities for business purposes only. Trux reserves the right to withdraw this function from any User that abuses the feature or uses the feature for any inappropriate or non-business-related purpose.

3.5 TRUX RESERVATION OF RIGHTS

Trux reserves all rights not expressly granted to User in this Agreement. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to products, services, content, or other materials made available to Users via the Services by Trux.

4. USER CONDUCT AND OBLIGATION.

4.1 YOU ARE RESPONSIBLE FOR YOUR CONDUCT ON THE PLATFORM

Trux provides the Trux Platform for your convenience. However, other than providing the Services via the Trux Platform, all activity on the Trux Platform is your responsibility. Specifically, regardless of Role, You are responsible for Your actions when using Our Services, including, to the extent applicable, obtaining and maintaining all necessary licenses, authorizations, approvals and consents for information and content User provides through our Services and comply with all applicable law, other legal requirements, and contractual requirements in relation to its use of the Services. If You have Authorized Account Users, then You are also responsible for the activities of all of those Authorized Account Users, and any act or omission by an Authorized Account User that would constitute a breach of this Agreement if taken by User will be deemed a breach of this Agreement by User. User shall make all Authorized Account Users aware of this Agreement’s provisions as applicable to such Authorized Account User’s use of the Services and the Trux Platform and shall cause Authorized Account Users to comply with such provisions.

4.2 RESTRICTIONS ON USER’S USE OF THE TRUX PLATFORM

User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. User shall not at any time, directly or indirectly, and shall not permit any Authorized Account Users to: (i) copy, modify, or create derivative works of the Services or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sub-license, assign, distribute, publish, transfer, or otherwise make available the Services or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or documentation; or (v) use the Services or any content provided via the Trux Platform in a manner or for any purpose that infringes, misappropriate, or otherwise violates any intellectual property rights, privacy rights or other rights of any person or entity, or that violates Applicable Law. User further agrees to comply with Applicable Law when using the Services and agrees not to use the Services for any unlawful purpose. Without limiting the foregoing, You expressly agree not to use the Services or any function or feature of the Services to commit any crime or to harass, threaten or invade the privacy of any person, or to cause property damage or personal injury. In certain instances, User may be required to provide proof of identity or other documentation to access or use the Services and User acknowledges and agrees that User may be denied access to the Services for failure to comply with such requests.

4.3 ACCOUNT SET UP, MAINTENANCE AND SECURITY 

4.3.1 ACCOUNTS

Users, including all Authorized Account Users must register for and maintain an active Account with Trux. Users must be at least 18 years of age to obtain an Account. Depending on User’s Role, Account registration may require User to submit to Trux certain personal and business information, such as Your name and contact details, as well as regulatory and licensing documentation or credentials. You expressly agree to provide and maintain accurate, complete, and up-to-date information to Trux in connection with setting up and maintaining your Account. You further expressly authorize Trux, at its sole discretion, to review, maintain, verify, and validate the information you provide to Us using any reasonable business means, including the use of a third-party managed and operated or publicly available databases. Consistent with this authorization, You acknowledge and agree that we may share the information You provide with third parties so that we can validate your credentials.

User expressly agrees to maintain the security and secrecy of User’s Account credentials, including User’s username and password at all times. User further agrees not to share Your username or password with any third party and Users may not assign or transfer their Accounts to any other person or entity. Unless otherwise permitted by Trux in writing, each User may only possess one Account. Any failure to provide or maintain accurate, complete, and up-to-date Account information, including having a valid payment method on file (applicable to Operator and Customers), or User’s deliberate failure to maintain Account security may result in (i) the relevant User’s inability to access and use some or all of the Services, or (ii) termination of Your User Account and this Agreement.

4.4 NETWORK ACCESS AND DEVICES

User is solely responsible, at its own cost and expense, for obtaining computer devices and data network access services necessary to use the Services and the Trux Platform. Trux does not guarantee that the Services, or any portion thereof, will function on or with any particular hardware or devices, or with any other software or network. It is each User’s responsibility to ensure that its hardware, software, devices, and network(s) are compatible with the Services. In addition, the Services and the Trux Platform may be subject to malfunctions and delays including without limitation, those inherent in the use of the Internet and electronic communications.

5. TERM AND TERMINATION 

5.1 TERM

This Agreement is effective upon execution by the User and shall continue indefinitely until terminated by User or Trux, as set forth in this Agreement.

5.2 SUSPENSION OF SERVICES

User may discontinue the use of the Trux Services at any time, for any reason, with or without terminating this Agreement. Trux may disable User’s (and/or any Authorized Account Users’) access to the Services at any time in the event of a breach or suspected breach of this Agreement or for any other cause in Trux’s reasonable discretion. Trux expressly reserves the right to refuse access to the Services at any time for any reason not prohibited by Applicable Law.

5.3 TERMINATION; TERMINATION OF ORDER FORM

Either Party may terminate this Agreement: (i) for the other Party’s material breach of this Agreement which is not cured within 30 days of written notice from the non-breaching Party (or immediately if the breach is incapable of being cured); or (ii) immediately in the event of insolvency or bankruptcy of the other Party, or upon the other Party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. Any outstanding payment obligations set out in Section 6 or that are set out in any executed Order Form shall survive any termination or expiration of this Agreement.

Notwithstanding the foregoing, an Order Form may override the terms of this Section 5.3. Where there is a conflict between termination terms of this Agreement and the Order Form agreed between Us, the terms of the Order Form shall prevail. Furthermore, the termination of an Order Form will not terminate this Agreement unless otherwise expressly agreed in the Order Form.

6. PAYMENTS, INVOICES, TAXES

6.1 PAYMENTS

Depending on your Role and activities on the Trux Platform, Users may incur Service Fees and other charges for Services as detailed in applicable Schedule(s) and Order Form(s) (as well as invoices issued to User(s)). All payments due shall be paid in accordance with the terms stated herein or as otherwise explicitly expressed in each Schedule or Order Form and/or invoice, as applicable. User agrees that Trux may use any lawful means reasonably necessary to collect payments for all fees and charges due from User, and that Trux shall be entitled to immediately suspend or terminate this Agreement in the event User or any Authorized Account User(s) do not pay fees due and owing from said User (or Account Users) in a timely way. User also agrees that any commercially reasonable amounts necessary to collecting any amounts due and payable to Trux, including but not limited to interest and administrative costs incurred in the event that a claim or lawsuit must be filed in court shall be borne and payable by User.

6.2 INVOICE DISPUTES

Any disputes or claims between User and Trux for the Services shall be made by Customer to Trux by electronic email to support@truxnow.com. In general, unless specified elsewhere, User shall have eight (8) days from the date of the invoice to dispute any item on a Trux invoice. Customer shall have the right to withhold payment for any amounts disputed provided that Customer raises a dispute with Trux in accordance with this section. Customer shall not withhold payment for any amounts not in dispute. The Parties agree to use commercially reasonable efforts to resolve any invoice disputes.

6.3 TAXES

User acknowledges and agrees that, depending on User’s Role and the Services User accesses, User may be required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to User’s provision of services to third parties using Our Platform; and (ii) provide Trux with all relevant tax information. Failure to provide up to date, accurate and valid tax information may result in delay of payments from or payable to you. User further acknowledges and agrees that User is responsible for taxes on its own income arising from the performance of services for third parties using the Services, and the conduct of your business. All Service Fees payable by User under this Agreement are exclusive of taxes and similar assessments.

6.4 SALES TAXES

If applicable, User is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable or receivable by User hereunder. Sales tax shall be added to the invoice amount for services rendered based on Applicable Law and the ‘bill to’ address which is deemed as the primary place of consumption of Services. Any amounts related to sales tax shall be clearly expressed on the invoice from Trux to You. If sales tax is collected, Trux shall remit the collected amount to the appropriate state and/or federal taxing authority.

7. WARRANTY

Trux warrants that the Trux Platform and the Services will be provided in a professional and workmanlike manner, consistent with applicable industry standards. EXCEPT FOR THE FOREGOING WARRANTY, THE TRUX PLATFORM AND SERVICES ARE PROVIDED "AS IS" AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRUX HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER AND THE TRUX PLATFORM. WITHOUT LIMITING THE FOREGOING, TRUX EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR RELATING TO THE DATA AND CONTENT COMPRISING AND/OR PRESENT ON THE TRUX PLATFORM, INCLUDING ITS ACCURACY, COMPLETENESS AND SECURITY AND FURTHERMORE, TRUX SPECIFICALLY DISCLAIMS 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. WITHOUT LIMITING THE FOREGOING, TRUX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. LIMITATIONS OF LIABILITY

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACHES OF CONFIDENTIALITY, OR FOR YOUR PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL SERVICES FEE PAID TO TRUX UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TRUX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THIS SECTION 8 WILL NOT APPLY TO ONE PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

9. INDEMNIFICATION

Trux shall defend User against any claim or action brought against User, and will indemnify and hold harmless User from and against any damages, liabilities, costs or expenses (including reasonable attorneys’ fees) awarded by a court or included as part of a final settlement, to the extent based upon the infringement by the Services of any United States patent, trademark or copyright of a third party (“Claims”), provided that (a) Trux is promptly notified in writing of any Claim, (b) Trux has sole control over the defense and/or settlement of the Claim, and (c) User gives Trux all available information and assistance (at Trux’s expense) to enable Trux to do so. In addition, if, as the result of any Claim, User is enjoined from using the Services, Trux, at its sole option and expense, may: (a) procure the right for User to continue to use the Services; (b) replace or modify the Services so as to make them non-infringing (without materially impacting functionality or performance); or (c) if Trux is not able to accomplish either of the foregoing alternatives on commercially reasonable terms, terminate User’s license to the Services and refund to User any prepaid, unused Service Fees. The foregoing indemnity shall not apply if the Claim results from: (a) Services that have been modified by anyone other than Trux or its subcontractors; (b) User’s use of the Services with software, hardware or services not provided by Trux; (c) misuse of the Services or other breach of this Agreement; (d) use of other than the most current, unaltered corrections and updates to the Services which have been provided to User at no additional charge; or (e) compliance by Trux with designs, plans or specifications furnished by or on User’s behalf. Trux shall not be liable hereunder for any settlement made by User without Trux’s advance written approval. User will indemnify, defend and hold harmless Trux from and against any Claims brought against Trux arising out the circumstances described in this paragraph. THE FOREGOING STATES THE ENTIRE LIABILITY OF TRUX WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIMS.

10. CONFIDENTIALITY, PRIVACY, PUBLICITY AND MARKETING 

10.1 CONFIDENTIALITY

Each Party acknowledges and agrees that in the performance of this Agreement, such Party may have access to or may be exposed to, directly or indirectly, confidential information of the other Party (“Confidential Information”). Confidential Information includes all information of User or Trux, including the transaction volume, marketing and business plans, business, financial, technical, operation and such other non-public information of Customer or Trux (whether disclosed in writing or verbally). Each Party hereto acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing Party; (b) the recipient Party of Confidential Information shall not use such Confidential Information for any purpose except in furtherance of this Agreement; (c) neither Party shall disclose the other Party’s Confidential Information to any third party, except to its employees, officers, contractors, agents, and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information not less protective than the terms hereof; and (d) the Parties shall return or destroy all of the other Party’s Confidential Information upon the termination of this Agreement or at the request of the disclosing Party. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the recipient party; (b) was possessed by the recipient Party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the recipient party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.

10.2 PRIVACY

Trux’s collection and use of personal information in connection with the Services is as provided in Trux’s Privacy Policy, and, as applicable its California Privacy Notice, the terms of which are incorporated into his Agreement by reference. User acknowledges that the Trux Privacy Policy and its California Privacy Notice may change from time-to-time, as provided in said policies. To the extent anything in said Privacy Policy, or (as applicable) the Trux California Privacy Notice conflicts with these Terms and Conditions, the terms of said policy(ies) shall prevail.

10.3 PUBLICITY AND MARKETING 

10.3.1 USE OF TRADEMARKS AND TRADE NAMES

During the Term of this Agreement, User grants to Trux a non-exclusive, non-transferable right, without the right to sublicense, to use User’s trademarks, trade names and logos for the purpose of marketing and selling Trux’s products and services. Trux may place such trademarks, trade names and logos within its catalogues, promotional literature, advertising material, customer lists and signs, but only in connection with the promotion and sale of the Services and access to the Trux Platform. Any other use of User’s trademarks, trade names or logos by Trux shall be subject to prior written approval by User.

10.3.2 PRESS RELEASE

Following the execution of this Agreement, User and Trux may jointly issue a mutually agreeable press release announcing the Parties’ entry into this Agreement. Prior to the issuance of such press release and subject to the terms of this Agreement, neither of User nor Trux shall issue any press release or public announcement regarding this Agreement or the matters contemplated hereby without the prior written consent of the other Party.

The relationship between the Parties under this Agreement is solely that of independent contracting businesses. The Parties expressly agree that: (i) this Agreement is not an employment agreement and does not create an employment relationship, between Trux and User; and (ii) no joint venture, partnership, or agency relationship exists between Trux and User (unless explicitly specified). Where, by implication of Applicable Law, or otherwise, you may be deemed an agent or representative of Trux, you undertake and agree to indemnify, defend with counsel appointed by Trux and paid by you, and hold Trux harmless from and against any and all claims threatened or initiated by any person or entity based on any implied agency or representative relationship between You and Trux.

Any notice delivered to Trux will be delivered in writing and sent (including through the use of electronic mail) to Trux using the contact details below.

To Trux

TRUX, INC.

C/O Contract Management

18 Tremont Street, Suite 220

Boston MA 02108

contracts@truxnow.com

Any notice to You will be delivered electronically to the address that You provided as part of the registration process.

13. GENERAL

13.1 CHOICE OF LAW AND VENUE

The interpretation of this Agreement shall be under Massachusetts law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts. All actions involving Trux must be filed in an appropriate Court in the Commonwealth of Massachusetts.

13.2 NON-WAIVER

The failure of a Party to enforce any term or terms of this Agreement shall not act as a waiver against future enforcement, and the other Party acknowledges and expressly agrees that such Party, shall at all times be entitled to enforce each and every provision of the Agreement, even if it has not done so previously.

13.3 ASSIGNMENT

You may not assign this Agreement without Trux’s prior written approval. Trux may assign this Agreement without your consent to: (i) an Affiliate; or (ii) an acquirer of or successor to Trux’s equity, business or assets. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment or agency relationship exists between you, Trux or any other third party as a result of this Agreement, access to the Trux Platform, or the use of the Services.

13.4 SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under the law.

13.5 AUTHORITY

Each of the Parties agrees that it is fully authorized to enter into this Agreement on behalf of his/her respective Party and has full authority to bind that Party to the terms of this Agreement.

13.6 FORCE MAJEURE

Neither Party shall be liable for any failure or delay in the performance of its obligations hereunder (other than payment obligations) due to causes that are beyond the reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the affected Party: (i) gives the other Party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.

13.7 ENTIRE AGREEMENT

This Agreement, together with any applicable, executed Order Form(s) (executed by You or by your organization if You are an Authorized Account User), any Schedule(s) attached to this Agreement (to the extent applicable to You), and the Trux Privacy Policy and, as applicable to You, the California Privacy Notice, shall constitute the complete agreement between us and shall be in effect immediately once You indicate your agreement to these terms by clicking the ‘ACCEPT’ button at the end of this Agreement (or by executing this Agreement in ink and delivering same to Trux). In the event the terms of this Agreement conflict with the terms of any other agreement entered into by the Parties, the terms of this Agreement shall apply. Any terms and conditions on any transactional or shipment-specific document, including, but not limited to, any bill of lading, dock receipt or similar documentation exchanged between the Parties or an Operator fulfilling a Shipping Assignment, other than these terms and conditions shall not apply to any Services performed under this Agreement and shall not be binding on or applicable to Trux.

13.8 CHANGES TO THIS AGREEMENT

Trux may amend the Agreement from time to time. Amendments will be effective upon Trux’s delivery of such updated Agreement in accordance with the Notices provision in Section 12 of this Agreement. Your continued access of the Trux Platform and/or the Services after such notice constitutes your consent to be bound by the Agreement, as amended.

SCHEDULE A:

TRUX PLATFORM - Manage and Deliver

This Schedule A (“Schedule”) sets forth the additional terms and conditions applicable to Users in the Role of “Customer” (and, as applicable, Customer’s Authorized Account Users) (“You” or “Customer”) who use the Trux Platform to manage their own transportation, transportation service providers and transportation tracking without engaging Trux to manage or match Operators or Drivers that may be subscribed to the Trux Platform. Such Customers may use the Trux Platform to: (i) create Shipment Assignments; (ii) monitor, manage and review Shipment Assignment(s); and (iii) assign and manage Private Carriage Shipment(s).

1. TRUX’S LIMITED OBLIGATIONS.

1.1 Customer expressly acknowledges that, for purposes of the Services described under this Schedule, Trux shall have no responsibility whatsoever to Customer beyond the provision of the Trux Platform to schedule and manage Company Owned Vehicles and/or Company Contracted Vehicles. Customer further acknowledges that Trux, to the fullest extent permitted by Applicable Law, expressly disclaims all representations and warranties regarding the Services and the Trux Platform, as well as the completeness, reliability and timeliness of the information exchanged between the Customer and other Users on the Trux Platform, and further disclaims all liability arising out of the acts, omissions or misrepresentations of Users with whom Customer may arrange Shipment Assignments, including claims and damages from property damage, death and bodily injury, or damage or loss of data or cargo or any other liability arising in connection with any Company Owned Vehicles or Company Contracted Vehicles.

1.2 TRUX IS NOT RESPONSIBLE FOR ARRANGEMENTS BETWEEN CUSTOMERS AND DRIVERS OR OPERATORS 

Assignments of Private Carriage Shipments under this Schedule involve the use of Company Owned Vehicles and Company Contracted Vehicles.

Regardless of whether Customer assigns Private Carriage Shipments to a Company Owned Vehicle, or a Company Contracted Vehicle, Customer and not Trux, shall be solely responsible for that transaction, including but not limited to the transportation of the shipment, the safety and security of the cargo, driver and recipients, and the terms, conditions and obligations contained in any agreements related to such transactions. Furthermore, unless Customer opts to use Trux’s optional Payment Service (“Trux Pay"), any payments due to those that undertake the Private Carriage Shipments are the responsibility of Customer and not Trux.

2. CUSTOMER’S REPRESENTATIONS AND WARRANTIES

2.1 Customer represents and warrants that its use of the Services and the Trux Platform are lawful and will comply with all Applicable Law. Without limiting the foregoing, Customer further represents and warrants that it is duly and legally qualified in accordance with all Applicable Law to operate as a business and can undertake Private Carriage Shipments pursuant to a lease or other binding contract between the Customer and either (i) its own Company Owned Vehicles or (ii) the Company Contracted Vehicles owned by one or more Operators. When Customer is using the Trux Platform to assign and manage Shipment Assignments for Private Carriage Shipments using Company Owned Vehicles and/or Company Contracted Vehicles, Customer expressly acknowledges and agrees that all the obligations of that arrangement are between Customer and Company Driver, or Customer and Company Contracted Operator, as applicable.

3. SERVICES; INVOICES; OPTIONAL PAYMENT SERVICE

3.1 INVOICING

Invoices for Service Fees due and payable by the Customer under this Schedule, including the payment terms agreed between Customer and Trux, shall be specified in the Order Form. Any dispute or concerns regarding an invoice shall be governed by the terms of the applicable Order Form and this Agreement.

3.2 PAYMENT OF SERVICE FEES  

Services Fee for the use of Trux Platform as a service, is associated with all Private Carriage Shipment Assignments undertaken pursuant to this Schedule. The transportation cost incurred by Customer with Operators undertaking Private Carriage Shipment Assignments remains the Customer’s exclusive responsibility. Notwithstanding the foregoing, if Customer elects to use Trux Pay, then the terms of processing payments as Customer’s payment agent shall be outlined in Schedule E of this Agreement.

4. ORDER DELIVERY TRACKER; INFORMATION DISCLOSURE 

4.1 DELIVERY TRACKING

The “Order Delivery Tracker” is an independent extension to the Services provided by Trux to Customer upon request and where feasible. If Customer elects to use the Order Delivery Tracker Service, then Customer expressly acknowledges and agrees that the Order Delivery Tracker Service requires Trux to share information entered by Customer that would be made available to the recipient of the Order Deliver Tracker. Information may include, but is not limited to names; phones numbers; GPS location data of Customer, Drivers of Company Owned Vehicles, or Company Contracted Vehicles; and Customer’s client information (if it has been provided). Customer expressly represents and warrants that it has all necessary permissions and consents to disclose and share information used in the Order Delivery Tracker.

5. GRIEVANCES AND DISPUTES

All grievances and disputes for Private Carriage Shipments under this Schedule shall be the Customer’s sole responsibility. Request for assistance should be directed to Trux’s support team at support@truxnow.com.

6. ADDITIONAL INDEMNIFICATION, LIABILITY, INSURANCE

6.1 ADDITIONAL INDEMNITY

Customer shall indemnify, defend and save Trux, including its employees, and agents harmless from and against any and all liabilities, claims, losses, costs, fines, penalties, expenses (including attorney’s fees), judgements, or demands on account or damage of any kind whatsoever (including but not limited to personal injury, death, property damage, cargo loss or damage, or any combination thereof), suffered or claimed to have been suffered by any person or persons, to the extent arising out of or caused by the Customer’s breach of this Agreement or Customer’s negligence or willful misconduct.

6.2 LIABILITY AND INSURANCE

Customer represents, warrants, and agrees that it carries and will maintain insurance providing liability coverage for all activities undertaken by Customer using the Services and/or the Trux Platform, including without limitation, a commercial general liability policy with a minimum limit of $1,000,000 per occurrence. Customer further expressly acknowledges that Trux shall have no obligation and shall not provide any insurance coverage to or benefitting Customer in relation to this Schedule.

Schedule B:

TRUX PLATFORM - FIND

This schedule B (“Schedule”) sets forth the additional terms and conditions under which a User in the Role of “Customer,” (and, as applicable Customer’s Authorized Account Users) (“You” or “Customer”) may use the Trux Platform to post and manage Shipment Assignments on the Trux Platform through a Trux administered marketplace (the “Service”).

1. CUSTOMER’S REPRESENTATIONS AND WARRANTIES 

1.1 LEGAL EXISTENCE

Customer represents and warrants that it is either (i) a sole proprietor or (ii) a legally formed business entity that is utilizing the Service to connect with Drivers, Operators or Brokers for the purpose of arranging the lawful transportation of materials.

1.2 COMPLETENESS OF OFFERS OF SHIPMENT ASSIGNMENTS

Customer represents and warrants that it will post Shipment Assignments that are accurate and complete such that they provide to potential Operators and Brokers all the information necessary to determine whether there is a reasonably good match to each Shipment Assignment. Without limiting the foregoing, Customer expressly represents that each Shipment Assignment You post shall include complete pickup and delivery location information, delivery instructions, required or desired vehicle type, cargo information, and the offered Rate. Customer, and not Trux, is solely responsible for the data inputted on the Trux Platform.

1.3 OFFERING OF SHIPMENT ASSIGNMENTS

Customer expressly agrees that its offers of Shipment Assignments and the terms of engagement with Operators who agree to undertake said Shipment Assignments, will occur pursuant to the “Rules of Engagement” that appear in Section 4, below. Customer expressly acknowledges and agrees to abide by the Rules of Engagement.

1.4 SPECIAL REPRESENTATIONS APPLICABLE TO BROKER OPERATORS

If Customer seeks to post Shipment Assignments pursuant to this Schedule, but is also an Operator, then such Operator is, for purposes of this Schedule and its posting of Shipment Assignments, also a “Broker-Operator.” As a Broker-Operator, You represent and warrant that You are duly and legally qualified in accordance with Applicable Law to broker Shipment Assignments to other Operators.

2. TRUX’S LIMITED OBLIGATIONS; LEGAL COMPLIANCE DISCLOSURES

2.1 TRUX IS A LIMITED BROKER AND NOT A CARRIER.

For purposes of activities occurring pursuant to this Schedule, Trux is acting: (i) solely as a broker of transportation vehicles and logistical services for Customers posting Shipment Assignments; and (ii) as a provider of a technology platform that allows Customer to post and manage its own Shipment Assignment(s). Customers using the Trux Platform to post and manage Shipment Assignments expressly acknowledge and agree that Trux itself is not a carrier and is NOT responsible for providing shipping services, and that the actual transportation of Shipment Assignment(s) shall be performed by third parties who shall be solely responsible and liable for the carriage of those Shipment Assignments.

2.2 TRUX LIMITED ROLE AS PAYMENT AGENT

The Customer hereby appoints Trux as its agent solely for the purpose of disbursing payments to Operators on its behalf. Such disbursements shall be based on the Rate set out in the Shipment Assignment and may also include any other mutually agreed payments between Customer and Operator.

2.3 INSURANCE

If required by Applicable Law, Trux shall comply with all insurance and bonding requirements imposed upon it, including, if applicable, its obligation to maintain a surety bond to benefit the Customer. All other obligations to procure and maintain insurance shall be borne solely by the Customer or the Operator (as applicable), unless otherwise specified in Section 9 of this Schedule.

3. TERMS AND CONDITIONS APPLICABLE TO OPERATORS; RIGHT TO REQUEST DOCUMENTATION OF CREDENTIALS

The general terms and conditions applicable to Operators with whom Customer may contract in connection with Shipment Assignments, including Operators’ representations and warranties, are set out in Schedule C. In addition, Customer (and/or its representatives available at the point of pick up or delivery) shall have the right to request from any Operator that has accepted a Shipment Assignment any commercially reasonable proof of legal compliance, identity, authority, license, insurance, and corporate existence as Customer deems necessary or desirable. Customer may also request that Operators complete site-specific safety training, provided that the Customer has appropriately notated this in its Shipment Assignment as a requirement.

4. RULES OF ENGAGEMENT APPLICABLE TO CUSTOMERS 

4.1 THE OFFER PROCESS

Customer’s posting of a Shipment Assignment constitutes Customer’s express offer of a Shipment Assignment to qualified Operators on the Trux Marketplace. The Service shall facilitate the presentation of Customer’s offer of a Shipment Assignment to qualified Operators pursuant to Section 1.2 of this Schedule. Customer may withdraw its offer of a Shipment Assignment per the terms of Section 4.3, below.

4.2 THE ACCEPTANCE PROCESS

The act of acceptance of an offer to undertake a Shipment Assignment is done by the Operator pressing the ‘ACCEPT’ button or otherwise indicating acceptance as directed on the page or application through which the Operator is reviewing the proposed Shipment Assignment. Once an Operator accepts a Shipment Assignment, the Customer and the Operator are deemed to have entered a binding digital contract to fulfill the Shipment Assignment based on the Shipment Assignment information provided and pursuant to the terms and conditions of this Schedule B (as applied to the Customer) and Schedule C (as applied to the Operator).

4.3 CANCELLING SHIPMENT ASSIGNMENTS AND INTERRUPTING SHIPMENT ASSIGNMENTS IN PROCESS 

You may reasonably cancel an accepted Shipment Assignment prior to the commencement of the Shipment Assignment or reasonably end a Shipment Assignment during the fulfilment of such Shipment Assignment. Unreasonable or repeated cancellations of accepted Shipment Assignments, particularly once a fulfillment begins, may result in reconsideration of Customer’s continued use of the Trux Platform, and possible claims of damages.

Customer shall be entitled to cancel an accepted Shipment Assignment if Operator fails to provide documentation of Operator’s credentials as reasonably requested by Customer.

Notwithstanding the foregoing, unless cancellation is the result of severe weather or a force majeure event, and the Customer is unable to provide alternative Shipment Assignments, Customer’s cancellation of an accepted Shipment Assignment within two (2) hours before the scheduled start time (as specified in the Shipment Assignment) will result in a cancellation fee equal to four (4) times the hourly rate of the requested truck type or an equivalent amount where the Shipment Assignment is not based on an hourly rate.

4.4 RATE AND BILLABLE AMOUNT

Customer is responsible for setting the Rate, which is the amount per unit that the Customer will pay for the transporting of materials. A ‘unit’ may be measured as, but not limited to: (i) per load; (ii) per shift; (iii) per ton; or (iv) per hour. The amount payable for the hauling of materials shall be calculated by the Service, which will result in a billable amount to the Customer.

4.5 DISPUTES; ADDITIONAL AMOUNTS; ADJUSTMENTS

If Customer believes that an adjustment to a previously agreed Rate is warranted, then the Customer may initiate such additional amounts or an adjustment in Rate by using the dispute function on the Trux Platform. Customer shall have forty-eight (48) hours after the completion of each Shipment Assignment to register a dispute with the Operator (the “Dispute Period”) unless otherwise agreed to by Trux. Alternatively, Customer may contact Trux Support at support@truxnow.com within the Dispute Period and filing an electronic written request for assistance in resolving the dispute.

It is Customer’s responsibility to review the progress of Shipment Assignments on the Trux Platform and identify any issues regarding Shipment Assignments (delays, failures to perform, etc.) within the Dispute Period. Disputed Shipment Assignments that are timely filed by Customers will be withheld from the invoice cycle pending further resolution. Except for those good faith disputes identified by Customer or Operator during the Dispute Period, Customer shall pay any undisputed amounts to Trux in accordance with the terms of this Agreement.

4.6 ACKNOWLEDGEMENT OF CUSTOMER’S RIGHT TO ADJUST RATES

Customer acknowledges and agrees that the Service consists of technology that enables customers similar to Customer to post Shipment Assignments for the purpose of allowing Operators, at their sole discretion, to accept Shipment Assignments that best meet each Operator’s objectives. Customer may adjust the Rate for Shipment Assignments based on the lack of prevailing interest or a high level of declines of any or all of Customer’s Shipment Assignments.

4.7 CUSTOMER WAIVER REGARDING DISCLOSURE AND USE OF INFORMATION

Customer expressly acknowledges that that the information that Customer provides via the Trux Platform about Shipment Assignments will be shared with the Operator. Customer represents and warrants that it has the authority to release all such information, which may include information that is Customer’s client information. Customer further represents and warrants that all the information that it receives about the Operator will be used solely for the purpose of fulfilling Customer’s relevant Shipment Assignments and that Customer will not use, disclose or sell such information beyond its intended purpose as described in this Schedule.

4.8 SHIPPING DOCUMENTS

Unless otherwise agreed in writing, all Shipment Assignments tendered or delivered using the Trux Platform or Services shall be accepted on a ‘bill of lading’ which shall function as a receipt of the goods only. The terms and conditions of such bill of lading will not apply to the transportation provided pursuant to or as a result of the Services provided under this Agreement. Upon request of Customer, Trux shall instruct Operators and Drivers to obtain a delivery receipt from the recipient of the materials, showing the materials delivered, condition of the shipment, and the date and time of such delivery, unless otherwise directed by the Customer.

5. ESTABLISHED CUSTOMER OPERATOR RELATIONSHIPS

Customer has the right to invite an Operator to become a Regular. A “Regular” means an Operator can only see Shipment Assignments from those Customers which an Operator is a Regular to. Notwithstanding the foregoing, the Operator shall have the sole right to determine whether to accept a Customer’s invitation to become a Regular. An Operator may also in its sole discretion at any time, seek removal from being a Regular with a Customer or all Customers.

6. ADVERTISING AND PROMOTION

Customer expressly agrees and consents to Trux’s use and promotion of Customer’s Shipment Assignment(s) on the Trux Platform.

7. SERVICES, RATES AND PAYMENTS

7.1 SERVICES FEES AND SHIPMENT FEES

For Customer Shipment Assignments posted on the Trux Marketplace using the Service, the Rate that is entered by Customer, and the calculated billable amount to the Customer shall be the amount invoiced to the Customer. Customer acknowledges and understands that the amount invoiced shall consist of both a Service Fee and Shipment Cost and mutually agreed adjustment amounts making up the Shipment Costs. The Service Fee represents payments due to Trux for the provision of its Services and is generally a percentage of the calculated billable amount. Trux shall take a Service Fee from the calculated billable amount with the residual disbursed on Your behalf to the Operator.

7.2 INVOICE AND PAYMENT TERMS

Trux shall invoice Customer all billable amounts based on Shipment Assignments completed using the Service. All charges for a given week of work (Sunday to the following Saturday) are due on the third (3^rd) Friday following your use of the Service for that week, and payment will be facilitated by Trux using the preferred payment method designated in your Account. Trux will send you a statement by email, no later than fifth day of the week following the week in which the Services were performed for billable amounts incurred during such week. Trux reserves the right to delay charging your account for up to hundred and twenty (120) days for reasons related to disputes or for compliance with Applicable Law, provided that in such case, Trux provide reasonable evidence that such charges remain due and owing.

7.3 CREDIT WORTHINESS

Each Customer may be required to complete a credit application form to determine credit worthiness when using the Service. Customer consents to Trux’s use of a third-party credit agency to assess the credit application. Trux shall issue to Customer a credit limit and may adjust that credit limit based on, but not limited to, the timely payments of Trux invoices, Customer’s selected payment method, and the ongoing review of Customer’s credit standing.

7.4 PAYMENT METHOD

Prior to the posting of Shipping Assignment(s), Customer must have an established payment method with Trux on the Trux Platform for Services. Trux accepts credit card payments as well as electronic payment transfers using automatic clearing house (ACH). Trux reserves the right to pass on to Customer any administrative fees for transaction failures and charge-backs, provided that such administrative fees can be reasonably demonstrated as a direct result of Customer not having sufficient clear funds on the day of payment. If Customer is using a credit card as the primary payment method, then Trux further reserves the right to use a credit card pre-authorization to secure funds for the Shipment Assignments prior to the day of performing the Shipment Assignment or payment. If the pre-authorization to secure funds fail, Trux shall, at its sole discretion, limit the Customer’s ability to use the Service.

7.4 LATE PAYMENTS 

It is the responsibility of the Customer to pay any undisputed amounts owed and due within the payment timeframes pursuant to this Schedule. Should the undisputed amounts owed by the Customer to Trux remain unpaid for more than two (2) Business Days from the invoice due date or the date of a notice, Trux may take one or all the following actions:

(i)Trux may offset any amounts payable to Customer under any agreements between the Parties;

(ii)Trux may withhold Services and amount to be disbursed to Operators on Your behalf;

(iii)Trux may charge interest for the outstanding amounts at a rate of eighteen percent (18%) per annum, or the maximum rate permitted by law, whichever is greater;

(iv)Suspend Services and refund to the Customer any withheld funds to be disbursed less the outstanding amounts; or

(v)Terminate this Agreement once all outstanding amounts are settled.

8. GRIEVANCES, DISPUTES, DELAYS IN DELIVERY.

8.1 GRIEVANCES AND DISPUTES WITH OPERATORS

Any disputes between Customer and any Operator shall be between those parties. However, in the event that either Customer or Operator do not appropriately respond to any disputes raised, either party may contact Trux Support at support@truxnow.com and report the issue. Trux shall take reasonable steps to facilitate discussions between the parties.

8.2 ACCIDENTS OR DELAYS

To the extent that Trux has been notified by the Operator of an accident or other event that inhibits the Operator’s ability to fulfill an accepted Shipment Assignment, Trux shall use commercially reasonable efforts to redirect the message to the Customer.

8.3 CARGO LOSS, DAMAGE, OR SHORTAGE

The Customer acknowledges that Trux does not have any liability for cargo loss, damage, or shortage from a Shipment Assignment. Notwithstanding the foregoing, this does not limit Customer’s right to pursue claims of cargo loss, damage, or shortage with the Operator that undertook the Shipment Assignment.

9. ADDITIONAL INDEMNIFICATION, LIABILITY, INSURANCE

9.1 ADDITIONAL INDEMNITY

Customer shall indemnify, defend and save Trux, including its employees, and agents harmless from and against any and all liabilities, claims, losses, costs, fines, penalties, expenses (including attorney’s fees), judgements, or demands on account or damage of any kind whatsoever (including but not limited to personal injury, death, property damage, cargo loss or damage, or any combination thereof), suffered or claimed to have been suffered by any person or persons, to the extent arising out of or caused by the Customer’s breach of this Agreement or any other act or omission on Customer’s part (including, but not limited to, Customer’s issuance of incomplete or inaccurate instructions).

9.2 TRUX INSURANCE

Trux represents, warrants, and agrees that it carries and maintains insurance providing liability coverage, including a commercial general liability policy, for the work performed by Operators and its Drivers on the Trux Marketplace and contracted with the Customer through the Trux Platform. Customer shall have the right to be named as an additional insured on a certificate of insurance. Customer shall have the right to seek a valid certificate of insurance at any time during the term of the Agreement. Trux reserves the right to alter or remove any or all such insurance policies at any time, without your prior consent or approval and replace them with other similar or equivalent insurance policies. Within seven days of receipt of a written or email request from You, Trux will furnish a complete and accurate description of the specific coverage and liability limits of all such insurance policies maintained by Trux, as of the date the request was received. In accordance with prior and future agreements between Trux and any Operator, the Customer warrants, represents, and agrees that such insurance policies maintained by any Operator are primary to any of Trux’s insurance and that Trux’s insurance policies shall be noncontributory until the policies of the Operator are exhausted. Trux warrants, represent, and agrees that after the insurance policies of the Operator are exhausted, such insurance policies maintained by Trux shall apply only up to limits specifically outlined in the policies maintained by Trux, and that such insurance policies maintained by You shall be non-contributory until Trux’s insurance policies are exhausted. For any outstanding claim amounts after the insurance policies of the Operator and Trux’s are exhausted, You waive and release all rights of subrogation of any and all of your insurance providers, including without limitation those of any worker’s compensation, general liability, automobile liability, and property policy providers.

9.3 CUSTOMER INSURANCE

Customer represents and warrants that it carries and will maintain insurance providing liability coverage sufficient to cover all of its activities relating to the posting and fulfilment of Shipment Assignments on the Trux Platform, including coverage for lost, damaged or delayed cargo, personal injury and death, property damage, and all activities of Drivers and Operators hired through the Services, including without limitation, a commercial general liability policy with a minimum limit of $1,000,000 per occurrence. It is further understood that Trux’s insurance will be primary, and the insurance provided by Customer and its Affiliates shall be excess and shall not called upon by Trux’s insurers for contributing, deficiency, concurrent, double insurance, or otherwise, and shall provide for a severability of interests of cross-liability clause. Any and all deductible or retention sums specific to Trux’s insurance policies shall be assumed by, for the account of, and at the sole risk of, Trux.

SCHEDULE C:

TRUX PLATFORM - DRIVE

This schedule C (the “Schedule”) sets forth the terms and conditions under which a User in the Roles of an Operator (which may also be referred hereunder as “You”, “Your”, “Operator”, or “Non-Asset Broker”) may accept and undertake Shipment Assignments available on the Trux Platform. For clarity, the use of the term Driver in place of an Operator is solely to differentiate (where appropriate) the individual operating a vehicle from an individual managing, directing, or controlling the Driver who operates a vehicle. An Operator includes those individuals who operate vehicles. (For the avoidance of doubt, this Schedule does not cover Drivers of Company Owned Vehicles and Company Contracted Vehicles, whose activities are governed by Schedule D).

1. OPERATOR ACKNOWLEDGEMENTS, OBLIGATIONS, REPRESENTATIONS AND WARRANTIES.

1.1 QUALIFICATIONS TO PROVIDE SERVICES

If You are accepting a Shipment Assignment through Trux Marketplace, then You represent and warrant that You are duly and legally qualified in accordance with all Applicable Law to provide for-hire motor vehicle carrier services and the transportation services contemplated herein to third parties. You further represent and warrant that You do not and will not, during the term of this Agreement, have an unsatisfactory or unfit safety rating issued by any regulatory authority with jurisdiction over Your operations, including, but not limited to, the Federal Motor Carrier Safety Administration, of the United States Department of Transportation. You further represent and warrant that during the Term of this Agreement, you will comply with all Applicable Law in the performance of your services under this Schedule.

1.2 DOCUMENTATION OF CREDENTIALS

You agree to provide to Trux documentation of your credentials and licenses (and those of your Drivers, as applicable) detailing your authority and qualifications to provide the services contemplated herein. The provision of documentation of your credentials and licenses does not exempt You from Your ongoing obligations to comply with Applicable Law nor does it confer onto Trux any obligations to attest to the authenticity of any documentation. You represent and warrant that the documentation that You provide to Trux represents Your credentials and licenses, and is truthful, accurate, valid, and complete. Documentation that may be requested by Trux or any Customer includes, but is not limited to, Operator’s compliance documents, government authorizations, California Air Resources Board compliance certificates, a commercial driver’s license, and other similar licensing and safety credentials. Failure to provide documentation as requested may result in Your suspension from the Services or be limited in Your usage of the Trux Platform and Services. Furthermore, You hereby consent to Trux’s reasonable use of third party providers to validate the documentation that You provided. You expressly agree that Trux may share the documentation with Customers for purposes of fulfilling Services hereunder. You further understand and agree to carry current copies of all such documentation and to make it available to a Customer or a Customer’s representative upon request. You understand a Customer has a right to cancel any Shipment Assignments for Your failure to provide documentation at any time. Trux has a right to cancel any Shipment Assignments you may have accepted should Trux suspect or can ascertain that the documentation that You provided is no longer accurate, true, valid or complete.

1.3 YOU MUST PROVIDE YOUR OWN EQUIPMENT

You represent, warrant and agree that You shall, at Your sole cost and expense: (i) furnish all equipment and vehicles necessary or required for the performance of Your obligations hereunder, including the fulfillment of all accepted Shipment Assignment(s); (ii) pay all expenses related, in any way, with the use and operation of the equipment and vehicles; and (iii) maintain the equipment and vehicle in good repair, mechanical condition and appearance. You shall not operate any equipment and vehicles that are not, or are not suspected to be, in safe operating condition.

You further represent and warrant that You are solely responsible for determining the most effective, efficient, and safe manner to perform each Shipment Assignment.

1.4 INDEPENDENT CONTRACTORS

You are an independent contractor, and You shall be solely responsible for the safe operation of Your vehicle(s) and equipment. You expressly acknowledge and agree that it is Your sole responsibility to control the means of fulfilling Shipment Assignments and to ensure compliance with Applicable Law when operating vehicles, equipment and in determining the selection of routes. You assume complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, worker’s compensation, unemployment compensation, disability, pension, and social security insurance), and any other financial obligations arising out of the services You provide and the transportation of cargo You perform hereunder.

1.5 TRUX RIGHTS TO HANDLE BILLING AND COLLECTION

Operator acknowledges and agrees that Trux shall have the exclusive right, as your appointed agent, to handle all billing and collection of fees in connection with Shipment Assignments that You undertook and fulfilled pursuant to this Schedule. You expressly agree to refrain from all collection efforts against any Customer, receiver, or shipper that you do business with on the Trux Platform pursuant to this Schedule without Trux’s prior written consent.

You expressly represent, warrant and agree that:

1.6.1. Once a Shipment Assignment has been accepted under this Schedule, You will perform the services detailed in the Shipment Assignment pursuant to the “Rules of Engagement” with the Customer, that are detailed in this Schedule, and as specified in Section 7, below.

1.6.2. You understand the terms and conditions of this Schedule, as well as the terms related to Rate and other specific instructions as set out in the Shipment Assignments shall apply to all accepted Shipment Assignments. Except as may be required by Applicable Law, in no event shall any provisions of Your standard tariff, terms and conditions, service guides, bill of lading, or similar documentation apply to the performance of Shipment Assignments You accept and undertake via the Trux Marketplace under this Schedule.

1.6.3. You will undertake the accepted Shipment Assignments in accordance with all the instructions provided by the Customer (or Customer’s representatives), without delay, and You further agree that all events that may cause delay shall be immediately communicated to the Customer and then Trux. If instructions pertaining to the collection, transportation and/or delivery of materials under a Shipment Assignment are not clear, it is Your responsibility to seek clarification from the Customer before physically accepting the materials.

1.6.4. You will perform the transportation services described in every Shipment Assignment with due care and diligence, timely and in a professional and workmanlike manner in accordance with the standards of care and service generally accepted in Your trade. Without limiting the foregoing, You acknowledge and agree that You are solely responsible for determining the most effective, efficient, and safe manner to perform each Shipment Assignment.

1.7 RECEIPTS AND BILLS OF LADING

Each Shipment Assignment hereunder shall be evidenced by a bill of lading acceptable to Trux naming Operator as the transporting carrier. Upon delivery of each Shipment Assignment made hereunder, Operator shall obtain a receipt showing the kind and quantity of cargo delivered to the recipient of such Shipment Assignment at the destination specified by the Customer through the Trux Platform, and Operator shall cause such receipt to be signed by the recipient of said cargo unless otherwise directed by the Customer. No terms, conditions, and provisions of the bill of lading, manifest or other form of receipt or contract shall apply to Shipment Assignment(s) provided under this Schedule. Operator’s failure to issue a bill of lading shall not affect its liability hereunder. You shall notify the Customer and Trux immediately of any exception made on the bill of lading or delivery receipt. If the Shipment Assignment is compensated on a ‘per load’, ‘per ton’ or similar basis, then You may not be eligible to access additional Shipment Assignments on the Trux Platform until the receipt is uploaded on the Trux Platform.

1.8 TAX STATUS AND DOCUMENTATION

You agree to and shall provide Trux with U.S. Department of Treasury Internal Revenue Service Request for Taxpayer Identification Number and Certification Form(s) (“Form W-9”). You further acknowledge Your understanding that the failure to submit an accurately completed Form W-9 may result in suspension from the use of the Trux Platform and Services, or result in the withholding of payments.
1.9 REPRESENTATIONS ON SAFETY

You represent and warrant that You as an Operator (i) possess the driving skills necessary to undertake Shipment Assignments, and (ii) are duly trained and experienced in the safe handling of equipment and motor vehicles, and general safety procedures, guidelines, and protocols that are customary in the construction and/or transportation industries or in Your trade. You further represent and warrant that You will follow all commercially reasonable safety precautions, including but not limited to following the express directions and guidance of any Customer or Customer’s representatives at pick-up or delivery locations. It is the Operator’s responsibility to practice safe handling of cargo, driving of vehicles, and using of equipment.

1.10 REPRESENTATIONS AND WARRANTIES REGARDING DRIVERS AND VEHICLES 

1.10.1 OPERATOR AND DRIVER REQUIREMENTS

You represent and warrant that You and all of your Drivers (as applicable) shall: (i) hold and maintain (a) a valid commercial driver’s license with the appropriate level of certification to operate the vehicle used to fulfill Shipment Assignments, and (b) all other licenses, permits, approvals, and related authorizations that may be applicable and necessary to perform the delivery of Shipment Assignments; (ii) possess the appropriate level of training, expertise, and experience to perform the delivery of Shipment Assignments in a professional and workmanlike manner with due skill, care, and diligence typically required of a professional vehicle operator, including maintenance of all training certificates and qualifications; and (iii) maintain high standards of professionalism, driver safety, service and courtesy.

You further acknowledge and agree that You and Your Drivers may be subject to background and driving record checks from time to time to qualify to fulfil, and remain eligible to fulfil, Shipment Assignments. Trux reserves the right, at any time in Trux’s sole discretion, to deactivate or otherwise restrict You or your Drivers from accessing or using the Service if You or Your Driver(s) fail to meet the requirements set forth in this Schedule.

1.10.2 EQUIPMENT REQUIREMENTS

You represent and warrant that that any vehicles You or your Drivers use to fulfill Shipment Assignments shall at all times be: (i) properly registered and licensed to operate in order to fulfill Shipment Assignments; (ii) owned or leased by You, or otherwise in your lawful possession or control; (iii) suitable for fulfilling the Shipment Assignments contemplated by this Schedule; and (iv) maintained in good operating condition, consistent with all industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements that may be applicable to any accepted Shipment Assignment(s). You also represent and warrant that You and Your Drivers shall at all times comply with Applicable Law regarding vehicle safety, operating speeds, vehicle dimensions, weights and operating loads. You and Your Drivers also represent and warrant Your understanding that it is not Trux’s responsibility to enforce Your compliance with Applicable Law and the safe operation of your Vehicles.

1.10.3 EQUIPMENT IDENTIFICATION

In order to fully integrate with the Trux Platform or Service, a System Vehicle Identification Number (“SVIN”) will be issued to each vehicle owned, operated, and controlled by You. It is your responsibility to know and supply the assigned SVIN upon request. You may create a physical SVIN plate that can be displayed or be visible to others, however, in no event should You display the SVIN where it may interfere with the safe operation of a vehicle.

2. OPERATING IN CALIFORNIA

2.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES

If You are operating in the State of California, then You further represent and warrant that you are:

2.1.1 FORMAL BUSINESS ENTITY

A formal business entity operating and registered under the laws of the state of California. You will provide documentation of your business status by submitting to Trux a United States Department of Treasury Internal Revenue Service Request for Taxpayer Identification Number and Certification Form (the “Form W-9”) showing your California registration status.

2.1.2 FREE AGENT

Free from direction and control of Trux or Customers with respect to the performance of services hereunder

2.1.3 PRIMARY TRADE

Customarily engaged with customers to fulfil Shipment Assignments that are the same or similar to Shipment Assignments and, upon request, You can demonstrate that you promoted your business as one that fulfills shipping and transportation services.

2.1.4 NON-EXCLUSIVE

Not in an exclusive relationship (in name or in practice) with any single customer and You are free to fulfill Shipment Assignments with other customers not using the Trux Platform and further that You intend to fulfill Shipment Assignments with multiple Customers on the Trux Platform.

2.1.5 REGISTERED ENTITY

Registered with the United States Department of Transportation or have obtained any necessary motor carrier authority necessary under Applicable Law.

2.1.6 CREDENTIALED ENTITY

Credentialed with and shall maintain at all times any applicable and/or necessary licenses, permits, and/or tax registrations required by Applicable Law necessary for You to conduct business in the state of California.

2.1.7 INDEPENDENT BUSINESS LOCATION

Located at and maintain and operate out of the primary business location identified in the Trux Platform during the sign-up process.

2.1.8 SELF EQUIPPED

Able to provide your own tools, vehicles, and equipment necessary to provide the services to third parties as described hereunder.

2.1.9 EXCEPTION

Not performing the type of work for which a contractors’ license is required by the California State License Board, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the California Business and Professional Code.

2.2. CALIFORNIA COMPLIANCE REQUIREMENTS

2.2.1. CALIFORNIA AIR RESOURCES BOARD CERTIFICATE

Operator shall be solely responsible for compliance with all provision of Applicable Law regarding dimension and overweight loads, and air quality and environmental standards, including, but not limited to, those of the California Air Resources Board (“CARB”). By entering into this Agreement, Operator acknowledges and agrees that it is aware of applicable CARB regulations, including the Truck and Bus Regulation (“TBR”) at 13. C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et seq., and the Tractor Trailer Greenhouse Gas (“GHG”) regulation at 17 C.C.R. § 95300 et seq., and has adopted policies and procedures to ensure compliance with such regulations, as they may be revised, adopted, and amended from time to time. Operator shall only dispatch and operate compliant vehicles (including vehicles with compliant TRUs) and shall maintain shipment-specific records evidencing such compliance, which records shall be provided to Trux or the Customer upon request. Without limiting the foregoing, if Operator operates TRUs in California under this Agreement, it shall ensure all such units are registered with the CARB’s applicable equipment registration system or similar.

2.2.2. HEAVY EQUIPMENT INSPECTION & MAINTENANCE COMPLIANCE

Operator shall be solely responsible for compliance with California’s Heavy-Duty Inspection and Maintenance Program. If Operator operates a heavy-duty diesel vehicle greater than 14,000 pounds, then Operator must register its vehicle and demonstrate such registration and compliance to the Heavy-Duty Inspection and Maintenance Program with a vehicle certificate or a fleet wide certificate (collectively refer to as a “HD I/M Certificate”). Operator shall make available to Trux and Customer, its current HD I/M Certificate and any renewed HD I/M Certificate. If an Operator’s vehicle is not in compliance with the Heavy-Duty Inspection and Maintenance Program, then Operator shall remove it from undertaking any Shipment Assignments from the Trux Platform.

3. OPERATOR AS A NON-ASSET BROKER

If You are a Non-Asset Broker, which for the purposes of this Schedule means You are an operating entity that does not own any equipment or vehicles, but subcontracts hauling and transport Shipment Assignments to other Operators, then Non-Asset Broker shall be solely and fully responsible to ensure that all subcontracted operators comply with the terms and conditions of this Agreement and this Schedule as if each of said subcontractor was an Operator. Without limiting the foregoing, the Non-Asset Broker shall ensure that all subcontracted Operators are registered appropriately as an Operator with Trux and on the Trux Platform, you represent and warrant that you shall not permit a subcontracted operator not registered on the Trux Platform to undertake a Shipment Assignment.

As a Non-Asset Broker You expressly understand and agree that all liability and insurance requirements shall be the responsibility of your subcontracted Operator. Failure of a subcontracted Operator to fully register and comply to the terms of this Schedule (including maintenance of proper insurance coverages where Trux is listed as an additional insured) may result in claims being made directly against You, the Non-Asset Broker for your misrepresentation and material breach of this Schedule.

4. GENERAL SUBCONTRACT PROHIBITION

Unless You are a Broker and You have identified yourself as such on the Trux Marketplace, You specifically represent, warrant and agree that all Shipment Assignments tendered to You by Trux shall be transported on equipment or vehicles operated by You or under Your direct control or authority, and that You shall not in any manner sub-contract, broker, or in any other form arrange for any Shipment Assignments to be transported by a third-party without the prior written consent of Trux. In the event of any breach of this provision, You shall remain directly liable to Trux, as if You transported such Shipment Assignment under your own control or authority. You further expressly agree to indemnify, defend, and hold Trux harmless from any and all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the use of any subcontractor in violation of this provision regardless of whether any claims arise from Your conduct, actions, or omissions or those of any subcontractor, or any other third party.

5. GENERAL DISCLAIMER OF APPLICABILITY OF THIS SCHEDULE TO CERTAIN TRANSACTIONS

If You are an Operator that is operating vehicles for a Customer, using Customer’s Company Owned Vehicle or a Company Contracted Vehicle, then this Schedule C does NOT apply to You. Instead, the terms of Schedule D applies.

6. TRUX’S OBLIGATIONS 

6.1. TRUX PLATORM AND SERVICE 

Trux’s sole responsibility to You under this Schedule is to provide the Trux Platform and Services, and to use commercially reasonable efforts to provide support of the Trux Platform during Trux’s normal operating hours.

6.2. TRUX IS NOT RESPONSIBLE FOR CUSTOMER’S POSTED SHIPMENT ASSIGNMENTS

You understand and acknowledge that Customer, and not Trux, is responsible for the content, completeness, and accuracy of the Shipment Assignments. In particular, Customer (and not Trux) is solely responsible for: (i) creating accurate and complete Shipment Assignments; (ii) ensuring that the cargo that is the subject of the Shipment Assignment(s) is properly tendered to the Operator that has accepted the relevant Shipment Assignment; and (iii) providing all commercially reasonable instructions related to each Shipment Assignment to the Operators that accept such Shipment Assignments.

Any claims or disputes between Customer and Operators should be taken up between Customer and Operator. However, upon request, Trux shall endeavor to assist in any dispute by providing any information it has in its possession to You. Such requests should be directed to Trux Support at support@truxnow.com.

6.3. APPOINTMENT OF TRUX AS PAYMENT AGENT

You hereby appoint Trux as your representative for the sole purpose of invoicing Customers on your behalf for completed Shipment Assignments that You undertake in this Schedule. Furthermore, You acknowledge and expressly agree that Trux provides a service where it handles the task of receiving payments from Customer(s) and disbursing Shipment Costs to Operators.

7. RULES OF ENGAGEMENT

7.1 THE OFFER PROCESS

Customer’s posting of a Shipment Assignment constitutes Customer’s express offer of a Shipment Assignment to qualified Operators on the Trux Marketplace. Customer is solely responsible for providing accurate and complete information about the Shipment Assignment, including but not limited to the pickup and delivery locations, delivery instructions, truck type, cargo information, and the offered Rate. Customer may withdraw its offer of a Shipment Assignment at any time.

7.2 THE ACCEPTANCE PROCESS

The act of acceptance of an offer to undertake a Shipment Assignment is done by the Operator pressing the ‘ACCEPT’ button or otherwise indicating acceptance as directed on the page or application through which the Operator is reviewing the proposed Shipment Assignment. Once an Operator accepts a Shipment Assignment, the Customer and Operator are deemed to have entered a binding digital contract to fulfill the Shipment Assignment based on the information provided in the Shipment Assignment, and pursuant to the terms and conditions of Schedule B of the Agreement (as applied to the Customer) or as otherwise agreed by Trux and Customer, and this Schedule C (as applied to the Operator).

7.3 CANCELLING ACCEPTED SHIPMENT ASSIGNMENT

You may reasonably cancel an accepted Shipment Assignment prior to the commencement of the Shipment Assignment, and You may also end an accepted Shipment Assignment during fulfilment. Cancellations and/or failures to perform services will result in non-payment of any fees due to Operator for the Shipment Assignment. Furthermore, unreasonable cancellation of a Shipment Assignment, failure to timely notify a Customer of a cancellation, or the frequent cancellation or cessation of accepted Shipment Assignments may result in your suspension and, depending on the circumstances, possible claims of damages against You. It is the Operator’s responsibility to verbally communicate to Customer any cancellations or delays in any accepted Shipment Assignments, including but not limited to all cancellations that occur within two hours of the Shipment Assignment commencement time.

7.4 RATE AND BILLABLE AMOUNTS; RATE CALCULATIONS 

7.4.1 RATE CALCULATIONS - GENERAL

The Rate presented to Operator in the Shipment Assignment, is the amount per unit that the Operator shall be compensated. The calculation that determines the amount for which the Operator shall be compensated is based on, but is not limited to: (i) per load; (ii) per shift; (iii) per ton, or (iv) per hour. The amount payable to You for an accepted and completed Shipment Assignment shall be calculated by the Trux Platform. For the purposes of disclosure, Trux receives a payment from the Customer for each Shipment Assignment completed by Operator for the use of the Trux Platform and its related services.

7.4.2 DISPUTES, ADDITIONAL AMOUNTS AS ADJUSTMENTS

If Customer or Operator believes that additional amounts are owed, or an adjustment to a previously agreed Rate is warranted, then the Customer or Operator is free to negotiate such changes or adjustments. Any disputed amounts should be notified to the other party immediately upon discovery. Customer and Operator should notify Trux of any disputes or adjustments by contacting Trux Support at support@truxnow.com.

7.4.3 PREVAILING WAGE RATES AND CERTIFIED PAYROLL

Shipment Assignments posted on the Trux Marketplace may be governed by Applicable Law, including but not limited to laws and regulations addressing “Prevailing Wage Rates.” It is Operator’s responsibility to determine if the Rate presented is in accordance with what You may otherwise be entitled to receive under Prevailing Wage Rates. Operator may be required to provide Certified Payroll documentation if mandated by Applicable Law.

7.4.4 FUEL SURCHARGE

An Operator may be offered a fuel surcharge amount as determined by the Customer and as applied using the Trux Platform. A fuel surcharge is an incremental amount above and beyond the Rate presented to an Operator. Not all Shipment Assignments may be eligible for a fuel surcharge amount. A Shipment Assignment eligible for a fuel surcharge amount will be denoted as such when a Shipment Assignment is offered to an Operator for acceptance. A fuel surcharge as an adjustment shall be calculated on the day the Shipment Assignment is completed. Operator acknowledges that fuel surcharge is an amount offered by the Customer using the Trux Platform, and Trux is not responsible for qualifying which Shipment Assignment is subject to a fuel surcharge amount.

7.5 SELECTING SHIPMENT ASSIGNMENTS

The Service consists of a listing of Shipment Assignments offered by many Customers. Each Operator, in its sole discretion, shall select Shipment Assignments that best meet its own financial and resource management objectives, operating hours, and logistical convenience. Customers are entitled to and may adjust the Rate(s) offered for Shipment Assignments based on the lack of prevailing interest by Operators.

7.6 OMITTED

7.7 INFORMATION DISCLOSURE AND USE; ADVERTISING AND PROMOTION

7.7.1 CONSENT TO DISCLOSURE OF INFORMATION AND AGREEMENT TO LIMIT THE USE OF INFORMATION RECEIVED

You acknowledge and agree that your acceptance of a Shipment Assignment will result in the disclosure of your information to Customer. Furthermore, the Service will disclose to Operator additional Customer information, including the Customer’s name and worksite location, as well as details about the recipient of any cargo to be transported. You acknowledge and agree that such information will be considered the Confidential Information of Customer and that You will treat all such information disclosed to you in confidence and use that information only to fulfill the accepted Shipment Assignment(s) and for no other purpose.

7.7.2 ADVERTISING AND PROMOTION

You expressly acknowledge and agree to allow Trux to promote or advertise You and your business (as applicable) as an Operator available on the Trux Marketplace to provide transport services as described herein.

8. SERVICES, RATES AND PAYMENTS

8.1 SHIPMENT COST AS AMOUNTS PAYABLE AND HISTORY

For work completed from Sunday to Saturday representing day 1 to day 7, payment will be made to Operator on the following Friday being day 13 or on Tuesday being day 17. In the event of a federally recognized holiday that impacts banking transactions, then an additional business day shall be added. An Operator that fails to provide banking information for direct deposit may result in a check being posted using United States Postal Services, resulting in additional days for delivery.

The Service will enable the generation of an invoice on the Operator’s behalf for payment collection from the Customer. Each Shipment Assignment completed shall be available on the Trux Platform and may be accessed via the ‘Job History’ section of the Trux Platform. It is the responsibility of the Operator to review completed Shipment Assignments in the ‘Job History’ screen to ensure accuracy prior to an invoice being generated on the Operator’s behalf to the Customer. Operator must raise a dispute with Customer through the Trux Platform by contacting Trux Support at support@truxnow.com.

8.2 REMITTANCE REPORTS

Operator shall be provided a Remittance Report upon request. A Remittance Report shall provide all the amounts payable to You for Shipment Assignments completed on the Trux Marketplace. Questions related to Remittance Reports should be directed to Trux Support at support@truxnow.com.

8.3 RIGHT TO WITHHOLD PAY

Trux shall be permitted to withhold any amounts payable to You, should Operator have any outstanding claims from Customer related to a Shipment Assignment, where Operator may not have submitted mandatory forms related to Certified Payroll, where the Customer has issued a lien or other claim against the Operator and instructed Trux not to pay Operator, or where Operator may not have submitted the required tax forms. Trux shall endeavor to inform Operator of any amounts withheld and their reasons. Trux shall release payment as soon as practicable once any issues are resolved.

8.4 PAYMENT METHOD

Trux shall pay Operator either through direct payment to the Operator’s bank account or via a bank issued check. Unless otherwise agreed in writing, no other form of payment will be available to Operator from Trux. Should Operator fail to submit bank account details to Trux in a timely manner, then a bank issued check will be issued to the Operator and sent via United States Postal Service to Operator’s contact address on the Trux Platform.

9. GRIEVANCES AND DISPUTES

9.1 GRIEVANCES AND DISPUTES

Any disputes between Customer and any Operator shall be between those parties. However, in the event that either Customer or Operator do not appropriately respond to any dispute raised, either party may contact Trux Support at support@truxnow.com and report the issue. Trux shall take reasonable steps to facilitate discussions between parties.

9.2 INTERSTATE SERVICES

When providing interstate services, You shall observe the time period for issuing additional amounts or claims for undercharges set forth in 49 USC § 13710. Assuming You have complied with the foregoing invoicing obligation, You shall bring suit related to unpaid freight charges or undercharges within 18 months of the date of delivery or your right to sue or otherwise seek payment shall be waived.

10. ADDITIONAL INDEMNIFICATION, LIABILITY, INSURANCE

10.1 ADDITIONAL INDEMNIFICATION

You agree to defend, indemnify, and hold Trux and the Customer harmless from an against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fee, arising out of or in any way related to any act or omission in connection with this Schedule by Operator, its employees or independent contractors working for Operator (collectively, the “Claims”), including but not limited to, Claims for or related to personal injury (including death), property damage and Operator’s possession, use, maintenance, custody, or operation of its equipment and vehicles. You hereby expressly waive any and all protections under Applicable Law, including those related to the exclusive workers’ compensation remedy, as necessary to effectuate the terms of this provision.

10.2 FREIGHT LOSS AND DAMAGE

10.2.1 RESPONSIBILITY ON CARGO

Unless otherwise agreed, Operator shall be solely responsible for the care, custody, and control of the cargo tendered under all Shipment Assignments. Operator accepts hereunder from the time said cargo is tendered to Operator for transportation until delivery to the recipient accompanied by the appropriate receipts. Operator shall notify Customer and then Trux immediately in the event any cargo is lost, stolen, damaged or destroyed, or in the event Operator becomes aware that applicable delivery schedule will not be met.

10.2.2 LIABILITY

Operator assumes the liability of a motor carrier under the Carmack Amendment as currently codified at 49 U.S.C. § 14706 for loss, delay, damage to the destruction of any and all goods and property tendered to Operator pursuant to this Schedule C from time the Shipment is tendered to Operator until delivery to the recipient accompanied by the appropriate receipts.

10.2.3 WAIVER OF LIEN

Operator shall not withhold any cargo transported under this Agreement on account of any dispute as to Rates or any alleged failure of Customer or Trux to pay charges incurred under this Agreement. Operator is relying upon the general credit of Trux and hereby waives and releases all liens which Operator might otherwise have to any goods of Trux or Customers in the possession or control of Operator.

10.3 OPERATOR INSURANCE

10.3.1 MAINTAINING INSURANCE

The Operator agrees to ensure that both Trux and Customer are provided coverage as additional insureds on all liability policies, including without limitation automobile and general liability policies using the term, “Trux, Inc. as an additional insured” or equivalent language. Operator understands, acknowledges and agrees that Trux as an additional insured means that Trux and the Customer using the services are also listed as an additional insured. Operator’s insurance shall be primary to any other insurance available to Trux and Customer, and any other insurance shall be noncontributory until Operator’s insurance is exhausted. Trux may require proof thereof before you may use Trux Services or any time thereafter. Operator guarantees and must provide proof of the insurer’s obligation to notify Trux at least ten (10) days before insurance cancellation. Upon receipt of such notice or upon expiration of a currently filed policy with no updated policy on file, you will no longer by permitted to use or access the Trux Platform or fulfill Shipment Assignments. It is the responsibility of the Operator to submit its certificate of insurance to Trux in a timely manner to prevent any suspension of access or functions on the Trux Platform. Operator acknowledges and agrees that Trux may release Operator’s contact information and Certificate of Insurance to a Customer upon such Customer’s reasonable request.

10.3.2 INSURANCE COVERAGE FOR OPERATORS

To participate on the Trux Platform, You must maintain a minimum insurance coverage of $1 million per occurrence in automobile coverages and you must expressly name Trux as an additional insured (or include equivalent language) on a certificate. You expressly agree to provide Trux a copy of your insurance policy, including all policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section upon request. Furthermore, Operator must provide Trux with written notice of cancellation of any insurance policy required by Trux. You must submit or cause Your insurance provider or broker to submit a Certificate of Insurance to Trux at insurance@truxnow.com.

10.3.3 INSURANCE COVERAGE FOR NON-ASSET BROKERS

If You are a Non-Asset Broker as defined under this Schedule, then Trux will waive the coverage minimums set out in Section 10.3.2 if You provide Trux with documentation showing that (i) your subcontracted Operators are registered on the Trux Platform and that they have adequate insurance coverages that comply with the terms of Section 10.3.2; and (ii) said subcontracted Operators have named Trux as an additional insured on their insurance policy[ies]. Even if Trux waives its insurance provisions for You on this subsection, You hereby agree that You, the Non-Asset Broker, shall be liable for the activities of any claims arising out of the acts or omissions of your subcontracted Operators and Drivers as if You were the owner of the vehicle that is subject to any claim. For the avoidance of doubt, a Broker must maintain at a minimum general liability insurance coverage of $1 million per occurrence. The foregoing waiver for non-asset brokers is only as to automobile insurance coverage.

10.3.4 WORKERS COMPENSATION

As an Operator, You warrant and represent You are in compliance with all Applicable Laws, including those related to Workers Compensation. As such, as required by Applicable Law, you are to maintain appropriate amounts of Worker’s Compensation coverage for your workers (where applicable).

SCHEDULE D:

TRUX PLATFORM - Drive Private Carriage

This schedule D (the “Schedule”) sets forth the additional terms and conditions that apply when a User in the Role of a Driver of a Company Owned Vehicle, Company Contracted Operator, or a Company Contracted Vehicle (“You” or collectively, for purposes of this Schedule, “Contracted Driver”) accepts Shipment Assignments under this Agreement using the Trux Platform.

1. TRUX LIMITED OBLIGATIONS TO YOU

You agree and acknowledge that your use of the Trux Platform is for convenience only. Trux has no obligation to confirm the rights and obligations as between You and any other User on the Platform with whom You are doing business. Among other things, Trux shall have no obligation to provide any maintenance records or other documentation to You or on your behalf to any other User. Furthermore, all fees and payments agreed between You and any other User shall be the obligation and responsibility of said other User. Trux shall not be responsible for payments or documentation of transactions between Contracted Drivers and other Users.

 2. CONTRACTED DRIVER REPRESENTATIONS AND WARRANTIES

As with all Operators using the Trux Platform and Services, Contracted Drivers expressly agree at all times to obey Applicable Law related to the safe handling of vehicles. Without limiting the foregoing, You expressly agree never to use any Trux applications, or access the Trux Platform, while operating a motor vehicle. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CONTRACTED DRIVERS EXPRESSLY RELEASE AND WAIVE ALL CLAIMS AGAINST TRUX ARISING OUT OF OR RELATING TO CONTRACTED DRIVER’S UNSAFE OPERATION OF A MOTOR VEHICLE.

Should You have any questions or concerns, Contracted Driver(s) should contact Users with whom they are doing business.

SCHEDULE e:

TRUX PaY

This schedule E (“Schedule”) sets forth the additional terms and conditions under which a User in the Role of “Customer,” (and, as applicable Customer’s Authorized Account Users) (“You” or “Customer”) may use the Trux Platform to process the payment of Shipment Cost for completed Shipments Assignments to Operators (the “Service” or “Trux Pay”).

1. SUBSCRIPTION TO TRUX PAY

This Schedule applies to those Customers that have subscribed to the Service. The payment schedule, commercial fees, and any additional terms that apply to a Customer’s use of the Service, are separately memorialized on an executed Order Form between Customer and Trux.

2. TRUX PAY SERVICE

2.1. CUSTOMER’S OBLIGATIONS 

2.1.1. Customer shall adhere to the payment schedule as defined in an Order Form and pay for Shipment Costs for Shipment Assignments completed on the Trux Platform. It is the responsibility of the Customer to ensure that any inputted amounts or calculations related to the Shipment Cost for each Shipment Assignment, are accurate. Any adjustments required shall be made on the Trux Platform or with the assistance of Trux Support.

2.1.2. Trux shall not be liable under this Schedule with respect to transactions not made on the Trux Platform, or any failures of the Customer in adhering to the obligations express in this Schedule, or any errors of amounts or calculations of payments related to Shipment Costs for each Shipment Adjustment or payment amounts due or owed to any Operators. The Service is designed to facilitate the processing and transmission of business-to-business transactions. Any information held by Trux of Operators which is deemed personal information shall be kept confidential and shall be solely used to provide the Service as expressed herein and in compliance with Applicable Law.

2.1.3. In providing the Service related to the disbursement of Shipment Costs on the Customer’s behalf for completed Shipment Assignment on the Trux Platform, the Customer represents and warrants that such Shipment Assignment is for lawful transport of construction or similar materials, and not cargo that may be prohibited by Applicable Law, or for payments not related to the physical movement of materials.

2.2. PAYMENT AGENT

The Customer hereby reaffirms the appointment of Trux as the payment agent solely for the purposes of disbursing funds to Operators on the Customer’s behalf. Such disbursement shall be based on the records as established on the Trux Platform and as otherwise adjusted by the Customer on the Trux Platform, or through the aid of Trux Support.

2.3. CREDIT CHECK

The Customer must complete a credit application form to determine creditworthiness before using the Service. Customer consents to Trux’s use of a third party credit agency to assess the Customer’s credit application before and during the use of the Service. Trux shall notify Customer of its credit limit (where applicable), and Trux may adjust the Customer’s credit limit based on factors such as the timely payments of Trux invoices and the ongoing review of Customer’s credit standing.

2.4. CUSTOMER’S AUTHORIZATION

 
2.4.1. Customer authorizes Trux to use and disclose confidential information submitted by the Customer on the Trux Platform in performance of the Service. This information shall include but is not limited to, information found in a Shipment Assignment, and information that may relate to the Operator. Customer further authorizes Trux to provide any relevant lawful government authority with information about the Shipment Assignment, information about the Customer, amounts remitted to Trux by the Customer, and amounts disbursed by Trux to Operators.

2.4.2. In the event a screening process reveals, or Trux becomes aware of a violation or suspected violation of Applicable Law, or if the continuation of the Service to Customer would cause Trux to become out of compliance with Applicable Law, then Trux shall have the right to immediately suspend or terminate the Service without penalty. Any action taken based on the aforementioned provision would require Trux to provide written notice to Customer at the earliest practicable time, which may include after an action has been taken.

2.4.3. Customer represents and warrants that the Customer has full authority to authorize all payments requested by the Service. The Customer has authorized the applicable financial institution(s) to withdraw, debit, or charge the necessary funds from the financial institution account(s) from which Shipment Costs will be drawn (if applicable). The Customer further authorizes Trux to disburse amounts only when a sufficient balance is remitted to Trux or is made available in a financial institution account at the anticipated withdrawal time. The anticipated withdrawal time shall mean not later than 11:59 PM, United States Eastern Hours (as per the Commonwealth of Massachusetts) on following the Operating Week. Notwithstanding the foregoing, Shipment Assignments in dispute will be excluded from the amount to be remitted from Customer to Trux and disbursed by Trux to Operator. In the absence of any instruction from the Customer prior to the anticipated withdrawal time, such shall be deemed as Customer’s legal authorization to proceed to disburse funds and shall be deemed to have the same legal authority as a written authorization signed by an authorized representative of the Customer.

3. PAYMENT SERVICE OPERATING SCHEDULE

Trux maintains a weekly schedule. Shipment Costs for completed Shipment Assignments are summary invoiced on a weekly basis. The Customer and Trux acknowledge and agree to the Service operating schedule as outlined in an Order Form.

3.1. PRIMARY DISBURSEMENT METHOD

Trux shall disburse funds to Operators using electronic funds transfer via automatic clearing house (“ACH”). Fund are disbursed on a specific day, and is generally made available to Operators on the next Business Day. However, this depends on the financial institution used by each Operator. Trux does not guarantee the time of receipt of funds by Operators which is solely dependent on each Operator’s financial institution. Should there be a bank holiday coinciding with the day that funds are generally to be disbursed, then the funds to be disbursed to Operators will occur on the next Business Day. Funds shall only be disbursed to financial institutions in the United States of America, and only in United States Dollars. 

3.2. ALTERNATIVE DISBURSEMENT METHOD

Customer may request that Shipment Cost be disbursed using paper check mailed to an Operator. The Customer shall be charged a “Check Processing Fee” to cover the cost of issuing and mailing a paper check as part of the disbursement of funds process. The check will be mailed on the day that the disbursement of funds would otherwise occur using electronic funds transfer via ACH. The paper check will be mailed to the Operator using the United States Postal Service, as such, the Customer acknowledges that the Operator would be delayed receiving funds depending on the time that the paper check reaches the Operator by mail.

3.3. CHARGES IMPOSED BY FINANCIAL INSITUTIONS

Any charges incurred by Trux as part of Customer’s action to remit funds to cover the Shipment Cost shall be passed onto the Customer as an additional charge at cost and identified as an individual line item on the invoice from Trux to Customer for the Service.

3.4. NOTIFICATION TO OPERATORS

Upon disbursing funds to Operators, each Operator receiving funds will be provided with a Trux remittance report outlining the associated completed Shipment Assignments totaling the amount disbursed (the “Remittance Report”).

3.5. TAX AUTHORITY REPORTING

Trux shall provide to Customer with a yearly report of all amounts dispersed to each Operator by not later than January 15. It is the responsibility of the Customer to issue each Operator with the relevant Internal Revenue Service (IRS) forms (if applicable) and other reports in compliance with Applicable Law.

4. REMITTING FUNDS TO TRUX

4.1 CLEARED FUNDS AVAILABLE

The Customer shall remit funds to cover Shipment Costs for all Shipment Assignments completed by Operators on the Trux Platform. The Customer shall (i) have clear funds available in the account used by Trux at a financial institution as determined by Trux; or (ii) have cleared funds available to be pulled by Trux from Customer’s financial institution.

4.2 OVERFUNDED

If the Customer overfunds Trux with remitted funds greater than the total Shipment Costs required, then Trux shall retain the overfunded amount and apply such overfunded amount as a credit against the total Shipment Costs of the next invoice. Trux shall notify the Customer of the overfunded amount. Alternative actions may be permitted by filing a request to Trux Support at support@truxnow.com. 

4.3 UNDERFUNDED

If the Customer underfunds Trux with remitted funds to cover Shipment Costs, then Trux shall inform the Customer, and the Customer shall immediately pay the underfunded amount to Trux. If the underfunded amount by the Customer is not paid within two (2) Business Days, then the underfunded amount shall be deemed as an outstanding amount owed by the Customer to Trux, and Trux shall be permitted to exercise its rights as described in Section 6 of this Schedule. The Customer shall remain liable for any negative adjustment to an Operator where such Operator does not have an outstanding amount to be disbursed by Trux on the Customer’s behalf. Where such negative adjustment cannot be applied, such amount shall be deemed as underfunded amount.

5. PERMITTED WITHHOLDING

Trux shall not withhold the disbursement of funds to an Operator unless: (i) as required by Applicable Law; (ii) by an order of any court of competent jurisdiction; or (iii) due to Customer’s failure to remit funds or pay Trux any outstanding amounts in this Schedule.

The withheld funds shall solely be used in compliance with Applicable Law or returned to the Customer upon any settlement of outstanding amounts. In the event funds cannot be returned to the Customer or disbursed to Operator for whatever reason, then Trux shall follow Applicable Law to escheat those amounts within the timeframe as prescribed by the state as determined by the last known business address on the Trux Platform. Trux shall have no liability arising for its compliance with such escheatment.

6. REMEDIAL ACTIONS

Any outstanding amounts (which may include, but is not limited to, interest, charges, and fees), owed by the Customer to Trux that exceeds two (2) Business Days from the invoice due date or a notice date, may result in Trux taking one or all of the following actions:

(i) Trux may offset any amounts payable to Customer under this Agreement;

(ii) Trux may withhold the Service and amounts to be disbursed to Operators;

(iii) Trux may charge interest for the outstanding amounts at a rate of eighteen percent (18%) per annum, or the maximum rate permitted by law, whichever is greater;

(iv) Suspend the Service and refund to the Customer any withheld funds to be disbursed less the outstanding amounts; or

(v) Terminate this Exhibit once all outstanding amounts are settled.

The use of actions prescribed herein does not waive Trux’s right to seek damages as permitted under this Agreement or Applicable Law.

REQUEST FOR STOP PAYMENTS

Customer may request Trux to stop any disbursement of funds already approved by Customer to Operator. Trux shall use commercially reasonable efforts to stop the disbursement of funds. However, Trux cannot guarantee that such request to stop the disbursement of funds will be successful. Customer acknowledges and agree that:

(i) A Customer’s request to stop the disbursement of funds must be submitted within a reasonable time as to allow Trux and financial institutions the opportunity to act on such request;

(ii) The Customer shall be responsible for any stop payment authorization fee plus any charges incurred by Trux from financial institutions in connection with Customer’s request to stop disbursement of funds;

(iii) The Customer accepts the responsibility that if the request to stop the disbursement of funds to an Operator cannot occur without stopping the disbursement of funds to all Operators, and the Customer persists on such request to stop the disbursement of funds, then any claims of delays by Operators shall be the liability of the Customer and not Trux;

(iv) If Trux initiates the stop payment and is able to return the stop payment amount to the Customer, but the Operator is nonetheless able to negotiate the withdrawal of the previously stop payment amount, thereby creating a liability for Trux, then Customer agrees to reimburse Trux for the amount withdrawn plus an associated charges demanded by financial institutions. Trux shall be responsible for demonstrating the withdrawn amount by the Operator. Customer shall reimburse Trux within two (2) Business Days of the invoice date from Trux to Customer. Failure to reimburse Trux shall be deemed as an outstanding amount and may result in Trux taking action as described in Section 6 of this Schedule.

RIGHT TO MAKE CORRECTION

If Trux incorrectly disbursed funds to Operators, Trux shall use commercially reasonable efforts to correct the error at no expense to the Customer. If applicable, Customer agrees to use commercially reasonable efforts to aid Trux in correcting any incorrectly disbursed amounts to Operators.