Forager Group Web Access Portal Terms and Conditions
Unless expressly superseded by a written contract signed by an officer of Forager Group, Inc. (“Forager”) and Customer, as defined below, these Terms and Conditions (“Agreement”) shall govern brokerage service provided by Forager and arranged via the website at app.foragerscs.com (the “Site”). Forager’s arrangement of transportation, and the Site will collectively be referred to herein as the “Service”. Any terms and conditions on any load confirmation or other shipment specific document exchanged between the parties other than this Agreement, as revised from time to time, shall not apply to any Services and shall not be binding on or applicable to Forager. Customer understands and agrees that Forager functions as an independent entity, and not as a carrier, in selling, negotiating, providing and arranging for transportation for compensation, and that the actual transportation of shipments tendered to Forager shall be performed by third-party motor carriers (“Servicing Motor Carriers”). Forager and Customer represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in this Agreement shall be deemed to require Forager to provide Services upon request of Customer and Forager reserves the right to accept or decline, in its sole discretion, any particular request for Services.
2. CUSTOMER ACCOUNT.
In order to use the Service, Customer must register for a Forager account on the Site (“Account”) and provide certain information as prompted by the registration form. As used herein, the term “Customer” means any entity establishing an Account as a customer, the owner of the goods with respect to which services are requested, and any other party with any interest in such goods. Customer represents and warrants that all required registration information it submits is truthful and accurate, that Customer will maintain the accuracy of such information and that it has the right to provide such information to Forager as contemplated under this Agreement.
FORAGER ENTERS INTO THE AGREEMENT, AS AMENDED FROM TIME TO TIME BY FORAGER AND AS IN EFFECT ON THE DATE A SHIPMENT IS POSTED TO THE SERVICE BY CUSTOMER. BY ACCESSING OR USING THE SERVICE, YOU, “CUSTOMER”, ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND ARE ACCEPTING THIS AGREEMENT, ON BEHALF OF YOURSELF AND THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF YOURSELF AND THE CUSTOMER THAT YOU IDENTIFY WHEN ACCESSING THE SERVICE. 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 OTHER THAN THIS AGREEMENT SHALL NOT APPLY TO ANY SERVICES PERFORMED UNDER THIS AGREEMENT AND SHALL NOT BE BINDING ON OR APPLICABLE TO FORAGER. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. FORAGER MAY TERMINATE YOUR ACCESS TO AND ABILITY TO USE THE SERVICE AT ANY TIME, IN ITS SOLE DISCRETION WHETHER WITH OR WITHOUT CAUSE.
Customer warrants and represents that: (i) if it is not the owner of CARGO WITH RESPECT TO WHICH SERVICES ARE BEING REQUESTED, Customer holds authority from such owner to, AND HEREBY DOES, bind the owner to the provisions of this Agreement as if the owner were specifically defined as the “customer” herein; and (ii) if customer is not the owner of the goods, then it holds all licenses, permits, authorities, and approvals required by applicable law AND THIS AGREEMENT in order to engage forager to render transportation services for compensation AS SET FORTH IN THIS AGREEMENT.
“User”, as used herein, means any user of the Service, and includes any Customer and representative of Customer including you, anyone accessing the Service via any log-in credentials provided by Forager. Customer may delete its Account at any time, for any reason, by following the instructions on the Site.
Customer is responsible for maintaining the confidentiality of its Account login credentials and is fully responsible for all activities that occur under its Account. Customer agrees to immediately notify Forager of any unauthorized use, or suspected unauthorized use of Customer’s Account or any other breach of security. Forager cannot and will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements.
3. USE OF SERVICE.
The Service includes a platform whereby Customer can request pricing for a specific shipment (each an “Load”). Customer is responsible for providing, and shall provide, all information requested by the Service (“Load Information”), and warrants and represents that all such Load Information is accurate and complete. Forager will provide a price quote (“Quote”) to Customer via the Service based on the Load Information input into the Service. BY PROVIDING A QUOTE, FORAGER IS NOT GUARANTEEING THAT IT WILL BE ABLE TO ARRANGE FOR REQUESTED TRANSPORTATION, BUT WILL USE COMMERCIALLY REASONABLE EFFORTS TO DO SO. The Service will give Customer the option of accepting the Quote. BY ACCEPTING THE QUOTE, VIA THE FUNCTIONALITY PROVIDED BY THE SERVICE, CUSTOMER IS AUTHORIZING FORAGER TO ARRANGE FOR TRANSPORTATION IN ACCORDANCE WITH THE LOAD INFORMATION, AND AGREES TO PAY THE PRICE STATED IN THE QUOTE. Forager reserves the right to limit sales, including the right to prohibit sales in violation of this Agreement. While Forager makes every effort to provide accurate information, inaccuracies or errors may occur. Forager is not responsible for such errors. Forager reserves the right to make changes, corrections, and/or improvements to the information contained on the Site and to the Services described in such information, at any time without notice. There may be certain loads that Forager is either unable to accept or must cancel. Forager reserves the right, at its sole discretion, to refuse or cancel any load for any reason.
4. COMPLIANCE WITH LAW.
- Forager represents and warrants that it is duly and legally qualified to operate as a broker and to provide the Services contemplated herein. Forager agrees to comply with all applicable federal, state and local laws regarding the provision of such brokerage Services. Customer warrants and represents that it is authorized to tender the cargo in question to Forager and to arrange for transportation of such cargo pursuant to the terms of this Agreement. Customer warrants that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation.
- Without in any way limiting the foregoing, if Customer tenders for transportation cargo designated as hazardous materials or dangerous goods, Customer shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Services is first initiated by Customer to Forager.
- When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), Customer shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of food and, at the time of the initial request for services with respect to the individual shipment, will provide written notice (each a “Food Handling Notice”) to Forager that the consignment contains Food which Food Handling Notice must also include any special instructions or handling requirements to be imposed on the Servicing Motor Carrier. Any such Food Handling Notice shall specifically identify the consignment to which it relates and in no event shall any Food Handling Notice apply to more than one shipment regardless of whether Forager confirms receipt of a Food Handling Notice purporting to apply to multiple conveyances. In no event will Forager have any obligation to provide any instructions to the Servicing Motor Carrier with respect to cargo other than those expressly noted by the Customer on the Food Handling Notice and Forager has no obligation to comply with or pass on to the Servicing Motor Carrier any handling instructions received after the initial request for service. If Customer does not provide a Food Handling Notice, Customer warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier. Forager may, in its sole discretion, arrange for international transportation services to be rendered by Servicing Motor Carriers.
- The foregoing notwithstanding, in no event will Forager have any responsibility to make, nor any liability with respect to any failure to make, any filings with any governmental entities, including, but not limited to, any automated export system filings or filings with any customs service. As between Forager and Customer, Customer remains solely liable for such. In no event will Forager or any Servicing Motor Carrier be responsible for, nor have any liability related to, any delays caused by border crossings.
5. PAYMENT AND CHARGES.
Forager will charge and Customer will pay the rates and charges set forth in the Quote without offset. Customer agrees to pay Forager without offset and within fifteen (30) days of receiving the invoice, with interest accruing monthly at the lesser of a rate of one percent (1.5%) per month or as otherwise allowed by law on any unpaid balance. Customer shall also be liable for any expenses, including attorney fees, Forager incurs in collecting its rates and charges. Customer shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by Forager at the time Forager arranged for services with Servicing Motor Carrier or which were not otherwise included in the rate quoted by Forager. If any information provided by Customer is inaccurate or incomplete, Customer acknowledges and agrees that agreed upon rates may, in Forager’s sole discretion, be revised to reflect the goods actually tendered.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS FORAGER FROM AND AGAINST, AND SHALL PAY AND REIMBURSE FORAGER FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THIS AGREEMENT; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; (iv) CUSTOMER’S FAILURE TO PROVIDE, OR FORAGER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, REQUEST OF; OR INFORMATION FROM CUSTOMER; OR (v) ANY ATTEMPT BY A THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THE ACTUAL OWNER OF CARGO (IF NOT CUSTOMER), TO IMPOSE LIABILITY ON FORAGER IN EXCESS OF OR IN ADDITION TO THE LIABILITY EXPRESSLY ASSUMED BY FORAGER PURSUANT TO THIS AGREEMENT WITH RESPECT TO SERVICES RENDERED BY FORAGER FOR THE ACCOUNT OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF FORAGER.
7. SERVICING MOTOR CARRIERS.
Forager’s sole responsibility with respect to selection and retention of Servicing Motor carriers is to make reasonable efforts to place Customer’s loads with responsible Servicing Motor Carriers: (i) authorized to perform the services required by Customer; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. Forager makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by Customer.
8. FORAGER INSURANCE.
Forager shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement.
9. CARGO LOSS, DAMAGE, OR SHORTAGE.
- Customer acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay. Upon request from Customer, Forager will use reasonable commercial efforts to determine and communicate the Servicing Motor Carrier’s limitation on cargo loss and damage liability to Customer. If Customer wishes for Forager to arrange for the Servicing Motor Carrier to assume liability in excess of the otherwise applicable limitation, Customer must make such request to Forager by contacting your sales representative at the Forager to request additional lability at least seventy-two (72) hours prior to scheduled pick-up of the shipment. Upon receipt of such request, Forager will use reasonable efforts to source a Servicing Motor Carrier able to perform the services at the requested liability levels and if Forager is able to do so will issue a revised Quote to Customer setting forth additional charges applicable to Customer’s request for additional recovery and Customer agrees to pay such additional amounts. If Forager does not issue a Quote setting forth additional charges related to the request for the Servicing Motor Carrier to assume additional liability, then Customer acknowledges and agrees that the Servicing Motor Carrier’s default limitation of liability will apply.
- The foregoing provisions notwithstanding, Customer acknowledges and agrees that Servicing Motor Carriers providing services within Mexico will not agree to assume excess liability above the otherwise applicable limitation, and any loss or damage occurring to cargo moving to, from or within Mexico will be subject to such limitations.
- It will be Customer’s responsibility to insure product in-transit. Forager may facilitate claims filing and processing with the Servicing Motor Carrier if Customer submits to Forager, within sixty (60) days of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. Forager may, in its sole discretion and without liability to Customer, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by Forager or if Customer, in Forager’s sole discretion, fails to cooperate with Forager in filing of claims with the Servicing Motor Carrier.
- Customer acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken trailer seal, shall not, in and of itself, be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage.
- Forager shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by Forager’s negligent acts or omissions, in which case, Forager’s liability shall be limited to the charges assessed by Forager and paid by Customer with respect to the goods at issue.
- Customer is responsible for filing a claim with Forager alleging Forager’s liability for cargo loss and damage within sixty (60) days of the date of delivery of the cargo in question (or, if none, within sixty (60) days of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve Forager of any and all liability with respect thereto. In no event will Forager have any liability arising from or related to the Servicing Motor Carrier’s refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting or disclaiming its liability for cargo loss and damage.
- Forager shall be under no obligation to arrange, and Servicing Motor Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; Forager’s sole obligation is to ensure Servicing Motor Carriers provide services with reasonable dispatch.
- Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. Customer acknowledges and agrees that the sole liability of Forager with respect to loss, damage or delay to cargo shall be as set forth in this provision.
10. SHIPPING DOCUMENTS.
Shipments tendered hereunder may be accepted by the Servicing Motor Carrier on a bill of lading or similar transportation document setting forth the respective legal rights and obligations of Customer and the Servicing Motor Carrier. In no event shall the terms or conditions of any such bill of lading or other document used by Customer and the Servicing Motor Carrier apply to Forager’s Services or otherwise be binding on Forager. Upon request of Customer, Forager shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. Customer waives access to Forager’s records pursuant to 49 C.F.R. Part 371.
11. NOTIFICATION OF ACCIDENTS OR DELAYS.
Forager agrees to notify Customer of any accident or other event of which Forager is apprised and which prevents the motor carrier from making a timely delivery.
Subject to the terms of this Agreement, Forager grants Customer a non-transferable, non- exclusive, limited license to use the Site only for Customer’s internal business use during the term of this Agreement and for no other purposes. Please note that this license terminates automatically if you breach this Agreement and upon termination or expiration of this Agreement. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) CUSTOMER shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (b) Customer shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) Customer shall not access the Service in order to build a similar or competitive service nor for any purpose other than to obtain transportation of loads via the Service; (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (e) operate the Service on a Service bureau basis, or (f) allow, assist or permit any third party to do any of the foregoing and (g) Customer shall only use the Service in the normal course of Customer’s business of arranging for transportation of cargo. Without limiting the foregoing, Customer shall not access the Service in order to obtain rate information in order to compete with Forager. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof. Any other use of the Site other than as noted in this Agreement may violate copyright or trademark laws, and, without the prior written permission of Forager, is strictly prohibited.
13. NETWORK ACCESS AND DEVICES.
Customer is responsible for obtaining the data network access necessary to use the Services. Customer’s mobile network’s data and messaging rates and fees may apply if Customer accesses or uses the Service from a wireless-enabled device. Customer is responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service and any updates thereto. Forager does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
14. PROPRIETARY RIGHTS.
- Excluding Customer’s User Content (defined below), Customer acknowledges that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service are owned by Forager or Forager’s licensors. Forager’s provision of the Service does not transfer to Customer or any third party any rights, title or interest in or to such intellectual property rights. Forager and its suppliers reserve all rights not granted in this Agreement.
- Forager reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. Customer agrees that Forager will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
- If Customer provides Forager any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Service (“Feedback”), Customer hereby assigns to Forager all rights in the Feedback, including, without limitation, all intellectual property rights therein and agrees that Forager shall have the right to use such Feedback and related information in any manner it deems appropriate and without restriction. Unless otherwise required under this Agreement, Forager has no obligation to review, respond to, resolve complaints or issues identified in, or otherwise address any Feedback Customer provides. Forager will treat any Feedback Customer provides to Forager as non-confidential and non-proprietary to Customer. Customer agrees that Customer will not submit to Forager any information or ideas that Customer considers to be confidential or proprietary or that are owned by others. If Customer agrees to participate in any case studies, Customer agrees that information Customer provides in connection with the case study is deemed Feedback and that Forager may use Customer’s name in connection with such Feedback.
15. USER CONTENT.
- “User Content” means any and all information, data, and other content that a User submits to, or uses with, the Service. User Content includes Load Information and any other information provided in a Load request. Customer is solely responsible for Customer’s User Content. Customer assumes all risks associated with use of Customer’s User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Customer’s User Content that makes Customer or any third party personally identifiable. Customer hereby represents and warrants that Customer’s User Content does not violate the Acceptable Use Policy (defined below). For the avoidance of doubt, User Content may include third-party content Customer submits. Customer agrees not to submit third-party content unless Customer has the consent of the applicable third-party owner of such content. Customer may not state or imply that Customers User Content is in any way provided, sponsored or endorsed by Forager. Customer alone is responsible for any liability resulting from Customer’s User Content, including, but not limited to, liability resulting from any of Customer’s User Content that violates the Acceptable Use Policy. Forager does not control User Content, and Customer acknowledges and agrees that Forager assumes no responsibility for any User Content and makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. By submitting User Content, Customer represents and warrants that it is the sole author and owner of the User Content and any intellectual property therein or otherwise has the rights and approvals to submit such User Content to be used as set forth in this Agreement, all moral rights in such User Content have been waived, the User Content is accurate, and use of the User Content will not violate this Agreement.
- Customer hereby grants, and Customer represents and warrants that Customer has the right to grant, to Forager an irrevocable, nonexclusive, royalty-free, irrevocable, sublicenseable (through multiple tiers), worldwide license to use, display, distribute, perform, adapt, publish, translate, sell, create derivative works, copy Customer’s User Content, including, without limitation for the purposes of including Customer’s User Content in the Service, to conduct Forager’s business, to create Anonymous Data and to advertise, promote and sell Forager services. All rights in and to the User Content not expressly granted to Forager in this Agreement are reserved by Customer. Forager reserves the right to change, condense or delete any User Content that it deems, in its sole discretion, to violate the content guidelines or any other provision of this Agreement. Forager does not guarantee that Customer will have any recourse through Forager to edit or delete any User Content submitted. Forager reserves the right to remove or to refuse to post any User Content for any reason. Customer acknowledges that it, not Company, is responsible for the contents of the User Content. None of the User Content submitted shall be subject to any obligation of confidence on the part of Forager, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
- Forager may create anonymous data records (“Anonymous Data”) from Customer’s User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that would identify Customer to third parties. Forager may use and disclose Anonymous Data for any purpose, including to improve the Service.
- Forager may share Customer’s User Content (i) with Forager’s third-party service providers; (ii) if another company acquires Forager’s company, business, or Forager’s assets, including through bankruptcy, with such acquiring company; (iii) to comply with relevant laws, to respond to subpoenas or warrants served on us, to protect or defend Forager’s or Forager’s Users’ rights or property, (iv) to conduct Forager’s business; (v) to advertise, promote and sell Forager services; and/or (vi) to investigate or assist in preventing any violation or potential violation of the law or this Agreement.
16. ACCEPTABLE USE POLICY.
- Customer agrees not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, inaccurate, intentionally misleading, trade libelous, pornographic, threatening, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (iii) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- In addition, Customer agrees not to use the Service to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (vi) harass or interfere with another User’s use and enjoyment of the Service; or (vii) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service.
- Forager reserves the right (but has no obligation) to review any User Content, investigate, and/or take appropriate action against Customer in Forager’s sole discretion (including removing or modifying Customer’s User Content, terminating Customer’s Account, and/or reporting Customer to law enforcement authorities) if Customer violates the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for Forager or any other person.
17. DISCLAIMERS AND RELEASE.
- THE SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND FORAGER (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. FORAGER (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FORAGER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- FORAGER HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO CUSTOMER BY ANY SERVICING MOTOR CARRIER. FORAGER SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF ANY SERVICING MOTOR CARRIER OR CUSTOMER FOR ANY REASON.
- FORAGER HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO CUSTOMER BY ANY CARRIER. FORAGER SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF CARRIER OR CUSTOMER FOR ANY REASON.
- CUSTOMER HEREBY WAIVES AND RELEASES FORAGER (AND FORAGER’S SUPPLIERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), ARISING FROM CUSTOMER’S USE OF THE SERVICE, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES.
- Neither Forager nor any Servicing Motor Carrier shall be liable for any delay in the performance of their respective obligations under this Agreement resulting from any force majeure, including, but not limited to, acts of God, acts of government or other civil or military authorities, acts of terror, war, riots, or any other event of like kind beyond the reasonable control of the party. In the event of a force majeure, the affected party shall promptly notify the other party in writing, stating the reasons for the inability to comply with the provisions of this Agreement, and the expected duration of the force majeure.
18. LIMITATION OF LIABILITY.
IN NO EVENT SHALL FORAGER (OR ITS SUPPLIERS) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’s USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR BUSINESS INTERRUPTION, EVEN IF FORAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FORAGER’S (AND ITS SUPPLIERS’) LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS CUSTOMER HAS PAID FORAGER IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART AND THE FOREGOING PARAGRAPHS 17 AND 18 SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF FORAGER’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.
19. THIRD PARTY SITES AND ADS.
20. COPYRIGHTS AND TRADEMARK INFORMATION.
All trademarks, logos and service marks (“Marks”) displayed on the Service are Forager property or the property of other third parties. Customer is not permitted to use these Marks without Forager’s prior written consent or the consent of such third party which may own the Marks.
21. ELECTRONIC COMMUNICATIONS.
Customer consents to receive communications from Forager in an electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Forager provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Customer’s non-waivable rights.
22. DISPUTE RESOLUTION AND MISCELLANEOUS.
This Agreement constitutes the entire agreement and understanding between the parties and supersedes any and all prior agreements and understanding, either oral or written. Forager controls and operates this Site from its offices within the United States. This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the state of Illinois, without regard to its conflict of law provisions, and in the event of any disagreement or dispute regarding services subject to this Agreement, to the extent not otherwise governed by federal law, the laws of Illinois shall apply and suit must be brought in courts serving Cook County, Illinois as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving or arising from Forager’s Services. Customer expressly submits and consents in advance to such jurisdiction in any action or suit commenced in such court, and hereby waives any objection based upon lack of personal jurisdiction, improper venue or forum non conveniens. If you do not agree, please do not use this Site. If you choose to access this Site from another location, you do so on your own initiative and are responsible for compliance with applicable local laws. By submitting an email address in connection with the Services, you agree that Forager and its third party service providers may use the email address to contact you about the status of Services and other administrative purposes. In the event either party incurs reasonable attorney fees, costs, or expenses in enforcing any of the provisions of this Agreement, or in exercising any right or remedy arising out of any breach of this Agreement by the other party, the prevailing party shall be entitled to receive reasonable attorney fees, costs, and expenses from the other party. Forager may revise this Agreement by updating this posting. Customer agrees that in the event any portion of this Agreement is found to be unenforceable, the remainder of this Agreement shall remain in full force and effect. By using this Site you agree to be bound by any such revisions and should therefore periodically visit this page to determine the current Agreement to which you are bound. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to email@example.com. You may also contact us by writing to Legal Department, Attention: Jessie Essman or by calling 773-360-0384. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.