Verestent TMS Terms And Conditions of Use
In return for the Verestent TMS (“FCTMS“) giving you access to your online FCTMS account, you have to agree to abide by the following terms and conditions of use for this and all future uses of your online FCTMS account.
Terms and Conditions of Use
The Verestent TMS “Exchange“, “Dispatch“, “Enterprise” and “Integrated TMS” programs consist of a website and software owned and maintained by Verestent TMS and its affiliates (“Verestent TMS“), and such website and software are under the sole ownershipand control of Verestent TMS.
The Verestent TMS “Exchange” program is designed to offer Members opportunities to exchange information concerning available freight and available equipment and allow for cross-utilization of equipment and freight opportunities for more effective service to the shipping public. It also provides members with a basic fleet management, customer management, order management and dispatch management tool.
The Verestent TMS “Dispatch” program is designed to offer Members all the features of the “Exchange” product, plus a richer set of asset management tools (compliance, tracking, etc.) and a richer set of order and dispatch management tools.
The Verestent TMS “Enterprise” version is designed to offer Members all the features of the “Dispatch” product plus opportunities to generate operating reports, create billing and operating documents, and interface with accounting systems all for the purpose of creating a financial and operating system meeting the needs of transportation and logistics organizations.
The Verestent TMS “Integrated TMS” version is designed to offer Members access to the features of the “Exchange” version of the software via computer API calls so they can integrate their existing TMS solution and take advantage of the power of the Verestent TMS network.
The Verestent TMS “Exchange“, “Dispatch“, “Enterprise” and “Integrated TMS” programs are collectively referred to as the “Programs“.
A “Member” is defined as a user of the FCTMS system who has been legally granted access to the FCTMS system either by a FCTMS employee or by an administrator of a company subscribing to one of the FCTMS programs.
All customers of FCTMS participating in any Program have entered into a pricing agreement (“Pricing Agreement“) that describes the specific products and services under the Verestent TMS suite of programs, as applicable, that will be provided to the customer by Verestent TMS. This includes access to any Verestent TMS Manual that contains operating instructions and information for the use of the Verestent TMS programs. The Pricing Agreement, Verestent TMS Manual and any website or other instructions are subject to these Terms and Conditions, and in the event of any conflict, these Terms and Conditions are controlling.
- Use and Ownership. Member shall use the information, software, and systems provided by Verestent TMS and the information available on the Verestent TMS website solely for its own internal business purposes. All copyright, database rights, design rights, and all intellectual property rights in and to all text and graphics, their selection and arrangement, and all mark-up/layout/scripts, software compilations, underlying source (hypertext mark-uplanguage and scripts) and all other materials provided to Member or available on the Verestent TMS website belong solely and absolutely to Verestent TMS. No part of the Verestent TMS website or related intellectual property may be reproduced in any form whatsoever, whether electronically or otherwise, without the prior written consent of Verestent TMS, other than temporarily in the course of using the Verestent TMS website or to keepa record of transactions entered into using the Verestent TMS website. Member may not copy the software except to install it on Member’s hardware and may not sell the software or incorporate it (or any portion of it) into another product. Member may not reverse engineer, decompile or disassemble the software or otherwise attempt to derive the source code (except where expressly permitted by law). Member may not modify, adapt or create derivative works from the software in any way or remove proprietary notices in the software and may not authorize or assist any third party to do any of the foregoing.
- Freight Rates between Members. Member recognizes and agrees that Verestent TMS will not negotiate freight rates between Members or become involved in any manner in the discussion or negotiation of prices for the transportation of freight or providing of equipment between Members.
- Member-Provided Information. Member recognizes and agrees that the information available on the Verestent TMS website is provided solely by other Members. Verestent TMS assumes no responsibility for the accuracy of the information contained on the Verestent TMS website or for any alleged losses or damages accruing to Member as a result of any reliance on the information contained on the Verestent TMS website.
- Freight Arrangements. All responsibility for the arrangement of individual freight rest with the respective Members. With respect to any particular freight load, the involved Members are responsible for exchanging appropriate communications and entering into appropriate agreements concerning rates, payment, pickupand delivery schedules, shipper and consignee requirements, freight valuation, and all other details concerning the individual freight movements in question. Verestent TMS personnel will not act as a communication conduit between individual Members regarding the movement of particular units or freight shipments. All disputes between Members shall be resolved or determined through normal business or legal procedures, without the involvement of Verestent TMS. These Terms and Conditions constitute an agreement solely between Verestent TMS and Member; Member expressly agrees that it is not entitled to any legal remedy against any other Member as a result of either Member’s entry into these Terms and Conditions.
- Use Restrictions. Member shall not use the information, software, or systems available on the Verestent TMS website or otherwise provided by Verestent TMS for any of the following purposes:
- Introducing viruses, corrupted files or any other similar software or programs that may damage, alter or destroy the Verestent TMS website or the operation of another's computer system, network, software, program, documentation or data.
- Accessing or attempting to access or use Verestent TMS’ computer system, computer network or website for the purpose of devising or executing any scheme or artifice to defraud, obtain money, property or services by means of false or fraudulent pretenses, representations or promises; or commit theft, including but not limited to theft of proprietary information.
- Engaging in any other conduct involving the use of the Verestent TMS website to violate any laws.
- Back-soliciting any business first made known to Member through loads offered to Member by other Members through the Verestent TMS website.
- Soliciting or engaging drivers or equipment owners first made known to Member through equipment offered by other Members through the Verestent TMS website.
- Using equipment locations of operating units of Members made available through the Verestent TMS website for the purpose of monitoring operations or analyzing operating performance of other Member carriers.
- Allowing any third party to use or access the information, software, or systems available on the Verestent TMS website or otherwise provided by Verestent TMS; redistributing the software to any third party; linking the software to any open source software; or subjecting the software to any open source licenses.
- Without limiting the foregoing, you agree that you will not use any script, robot, spider, Web crawler, screen scraper, automated query program or other automatic device or manual process to monitor or copy the content contained in the your online FCTMS account. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of your online FCTMS account, and that you will not disturb the normal operation of such services. You agree that you will not take any action that imposes an excessive, unreasonable or disproportionately large load on our infrastructure. You agree not to use the service in a manner that harasses or may harass other parties, or that will or will have the potential to disrupt, undermine, corrupt, diminish or otherwise threaten or jeopardize the service or its integrity.
- Availability; Disclaimer. Verestent TMS will use its best efforts to provide for the continuing ongoing operation of any information, software, or systems provided to Member by Verestent TMS and for continuing access to any data stored or maintained by Verestent TMS on behalf of Member, but Verestent TMS assumes no responsibility for any damages resulting from the inoperability or inaccessibility of the Verestent TMS website or any information, software or system. Member assumes all risks associated with the use of the Programs and the Verestent TMS website, including any risk to its computers, software or data being damaged by any virus, software, or any other file which might be transmitted or activated via the Verestent TMS website. Verestent TMS is not liable for any inability to use your online Verestent TMS account service because of issues with the availability of your internet provider’s service. Verestent TMS shall not be liable for any special, incidental, or consequential damages, including, without limitation, lost revenues or lost profits, resulting from the use or misuse of the information contained on the Verestent TMS website. The amount of any damages awarded to Member against Verestent TMS shall be limited to the amount of any fees paid by Member to Verestent TMS during the (3) three month period prior to the last occurrence of the events or conditions giving rise to such damages. Without restricting the generality of the foregoing, Verestent TMS disclaims all liability for any claim in relation to:
- any matters or factors outside of its control, including the availability or unavailability of the Internet, or telecommunications or other infrastructure systems;
- the availability or unavailability of the Internet, or telecommunications or other infrastructure systems due to system maintenance;
- any illegal or fraudulent use of your login information; or
- the use of your login information in a foreign country where such use is prohibited by the laws of that country.
- Additional Disclaimer. Notwithstanding any express rights granted to Member in the Pricing Agreement or under these Terms and Conditions, neither the services offered under the Programs nor any provision of the Pricing Agreement or these Terms and Conditions shall be deemed or construed to grant to Member either expressly, by implication, by way of estoppel, or otherwise, any right, license, covenant or authority to infringe or immunity from infringement liability under any patents, patent applications, inventions or inventions disclosures. Member agrees that this disclaimer of rights shall not be deemed to be a derogation of any express rights that have otherwise been granted to Member in the Pricing Agreement or under these Terms and Conditions.
- Third Party Websites. The Verestent TMS website may, from time to time, contain links to other internet websites for the convenience of users in locating information, products, or services that may be of interest. These third party sites and any other sites operated or maintained by third parties (collectively, “third party sites“) are operated or maintained by organizations over which Verestent TMS exercises no control, and Verestent TMS expressly disclaims any and all responsibility for the content, information, links, and other items, the accuracy and completeness of the information, and the quality of products or services made available or advertised on any third party sites. Verestent TMS does not control, endorse, promote, or have any affiliation with any third party sites unless expressly stated herein. Member shall be responsible for any fees resulting from Member’s use of third party sites or of information obtained by Member from third party sites.
- Service Cancellation. Verestent TMS reserves the right to cancel service to any Member at any time in the event of nonpayment for Verestent TMS services as set forth in the Pricing Agreement between Verestent TMS and Members, or in the event of any violation of these Terms and Conditions. Unless otherwise expressly set forth in a Pricing Agreement or other written agreement between Verestent TMS and Member, either Verestent TMS or a Member may cancel Member’s involvement in the Programs on (30) thirty days prior written or electronic notice. Any cancellation hereunder shall not operate to relieve the Member of any financial or other obligations contained in these Terms and Conditions, in any Pricing Agreements, or otherwise. If a Member is paid upas of the effective date of a cancellation, Member for a subsequent period of six months: (a) shall be entitled to continuing access its data, but may not alter or input changes to that data; and (b) for a fee of $25,000.00 U.S., may request that Verestent TMS provide Member with a complete package of its data. Verestent TMS reserves the right to purge its system of all data regarding a Member after (6) six months following the effective date of cancellation of a Member’s service.
- System Requirements. Member agrees to abide by recommended system requirements, including amendments and upgrades thereto as published by Verestent TMS from time to time, and agrees that Verestent TMS products shall not be installed or used on any computer system that does not meet the minimum requirements. The functioning of any hardware used by Member in connection with the Programs shall be at Member’s sole cost and risk, notwithstanding any recommendations concerning the acquisition of such hardware that may have been provided by Verestent TMS.
- Accuracy of your corporate profile information. Member agrees to provide all of the requested corporate profile information for the purposes of being a good corporate member in the Verestent TMS member network. You agree to be responsible, at all times, for the accuracy and completeness of information about your business and to inform other FCTMS member companies of any changes that affect that information. This includes but is not limited to the identification of the business owner(s) (sole proprietor, partners, or directors and officers of the corporation), proper motor carrier insurance and authorities. You also agree that any information you provide is true, accurate, and complete.
- Maintaining user access secrecy. You understand and accept that you are at all times responsible for the secrecy and control of our login information (i.e. user ID, name, title and password). This responsibility applies even if you change your login information. Your password information must be kept confidential at all times and must not be shared with or disclosed to others. If your login information (i.e. user ID and password) are revealed or if you suspect that someone else has learned or obtained them, you are responsible for immediately taking all necessary measures to change your password and secure your access. You agree not to use your login information for any illegal or improper activities.
- Use Monitoring. Member expressly consents to administrative monitoring of its use of the Programs and the Verestent TMS website at all times. Member acknowledges and agrees that: (i) system administrators may provide evidence of possible criminal activity identified during such monitoring to appropriate law enforcement officials; and (ii) information provided to Verestent TMS by a Member through the Verestent TMS website or otherwise may be subject to federal, state and provincial laws governing records disclosure and confidentiality, including but not limited to the Personal Information Protection and Electronic Documents Act, and the USA PATRIOT Act.
- Modifications to Terms and Conditions. These Terms and Conditions may be changed or updated at any time by Verestent TMS upon written or electronic notice to Member. In the event of any such changes or updates to the Terms and Conditions, each user will be required to accept the modified Terms and Conditions on their next sign-in to the system. Member’s continued use of the Programs and the Verestent TMS website after any such changes or updates shall signify Member’s understanding of an intention and agreement to be bound by any such changes or updates. If a Member is unwilling to accept such changes or updates it may suspend its use of the Verestent TMS website and cancel its involvement in the Programs without the advance notice described in Section 9, but subject to the remaining requirements of Section 9.
- Assignment; Change in Control. Unless otherwise expressly set forth in a Pricing Agreement or other written agreement between Verestent TMS and Member: (i) Member may not assign to any other party its rights or obligations under these Terms and Conditions or transfer to any other party its access to the Programs or the Verestent TMS website; and (ii) Member will notify Verestent TMS in writing of any Change in Control of Member, and in such event Verestent TMS will have the right to terminate Member’s participation in the Programs and access to the Verestent TMS website. “Change in Control” means any change in ownershipof Member or the consummation of any reorganization, merger, acquisition, share exchange or transfer, consolidation, or sale or disposition of all or substantially all of the assets or stock shares of Member.
- Governing Law/Venue. This agreement and these Terms and Conditions shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, other than provisions relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is expressly made inapplicable to any aspect of the business arrangement between Verestent TMS and Members. Each Member irrevocably attorns and submits to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any proceedings in such court or that such court provides an inconvenient forum with respect to all matters concerning the relationshipbetween Verestent TMS and Member.
- Arbitration. In the event of a dispute or disagreement between Verestent TMS and Member, such dispute may, upon the written request of either party and on mutual agreement of both parties, be submitted to and settled exclusively by final and binding arbitration in lieu of any judicial proceeding. Such arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules, with such arbitration to be conducted by a single arbitrator in Toronto, Ontario, Canada. Any arbitration award shall be binding and enforceable against the parties and judgment may be entered thereon in any court of competent jurisdiction. The provisions of this Section 17 shall not preclude any party from seeking or obtaining from a court of competent jurisdiction: (a) injunctive relief; or (b) equitable or other judicial relief to specifically enforce these Terms and Conditions or preserve the status quo prior to resolution of any dispute through arbitration. The provisions of this Section 17 shall not apply to any dispute arising out of any misuse or infringement of the intellectual property rights of Verestent TMS.
- Entire Agreement. This agreement and these Terms and Conditions, together with any documents referenced in these Terms and Conditions, constitute the sole, entire, and existing agreement between Verestent TMS and Member, and supersede all prior agreements and undertakings, oral and written, express or implied, or practices, between the parties, and express all obligations and restrictions imposed on each of the respective parties during its term, except those specifically modified or changed by subsequent mutual written agreement between Verestent TMS and Member. In the event any part of these Terms and Conditions is determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written.
These terms and conditions of use may be amended from time to time. When this occurs, you will be presented with the new version and asked to indicate you acceptance once again.