Date: 9 Jan 2023
EmergeTech, Inc. (“Emerge”) provides certain logistics services through the Emerge™ Transportation Management Service Marketplace (collectively, the “Emerge Platform”). These Terms and Conditions (the “Agreement”) govern your access to and use of the Emerge Platform. If you are accepting this Agreement on behalf of your employer or another entity (which will be deemed to the case if you sign up for access to and use of the Emerge Platform using an email address from your employer or such entity), then the “you” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c ) you agree to this Agreement on behalf of your employer or such entity.
1. The Emerge Platform
The Emerge Platform is offered to you through the Emerge web site located at http://www.emergemarket.com (the “Site”). The Site enables users (“Users”) to publish, search for and book services. Users who offer logistics services are “Carriers” and Users who consume those logistics services are “Shippers.” Shippers may add Carriers previously used (“Network Partners”) to the platform or recommended by Emerge (“Premier Partners”). Additionally, as the provider of the Emerge Platform, Emerge provides Carrier logistics services through the Emerge Carrier Network (“ECN”). You may be using the Emerge Platform in the capacity of a Carrier or a Shipper, and the terms applicable to Carriers or Shippers will apply to you in your capacity as a Carrier or Shipper.
2. General User Conditions
a. Account Registration.
You must register an account to access and use many features of the Emerge Platform, and must keep your account information accurate. You are responsible for maintaining the confidentiality of your credentials and account and for all activities that occur under your login or account. Emerge reserves the right to access your account in order to respond to your requests for technical support.
b. Provision of Services.
Subject to this Agreement, Emerge hereby grants you a non-exclusive right to access and use the Emerge Platform for your internal business purposes. You may permit Users to use the Emerge Platform on your behalf. You are responsible for provisioning and managing your User accounts, for your Users’ actions through the Emerge Platform and for their compliance with this Agreement.
c. Technology Restrictions.
Subject to the terms and conditions of this Agreement, you may access and use the Emerge Platform only for lawful purposes. All rights, title and interest in and to the Emerge Platform and its components will remain with and belong exclusively to Emerge. You shall not (directly or indirectly) (i) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Emerge Platform available to any third party; (ii) use the Emerge Platform in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Emerge Platform or its components or outside the scope expressly permitted herein, (iii) use or access the Emerge Platform to develop a product or service that is competitive with Emerge’s products or engage in competitive analysis or benchmarking, or (iv) modify, adapt or hack the Emerge Platform to, or otherwise attempt to gain unauthorized access to the Emerge Platform or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Emerge provides you or publishes in connection with the Emerge Platform, and you shall promptly notify Emerge if you learn of a security breach related to the Emerge Platform.
d. Data Security.
Emerge will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of User Content (as defined below); (ii) protect against threats or hazards to the security or integrity of User Content; and (iii) prevent unauthorized access to User Content.
e. Platform Rules.
You agree that you will not use the Emerge Platform to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense. Additionally, Emerge aims to maintain a balanced marketplace that maximizes cost savings for Shippers, and revenue generation for Carriers. As a result, Emerge does not allow double brokering within the system. Some Shippers and Carriers may choose to automate their connection with and use of the Emerge Platform. If automating connectivity, you hereby agree: (A) not to provide access to the Emerge APIs unless authorized by Emerge, (B) that all opportunities entered into the Emerge Platform by a Shipper are legitimate, and in order to check market rates within the Emerge Platform, you must use the Emerge rate check functionality, (C) you will not in the Emerge Platform create a User account within the Emerge Platform using an MC Number not affiliated with you or your employer entity, and (D) that your success obtaining the best rates is based upon your Carrier’s participation in the Emerge Platform – Emerge highly encourages you to sign up all of your Carriers to the Emerge Platform.
g. User Content.
Parts of the Emerge Platform enable you to provide load or lane information, feedback, text, photos, information, and other content (collectively, “User Content”). You are solely responsible for all User Content that you upload, post, deliver, provide or otherwise transmit or store in connection with or relating to the Emerge Platform. You are and will remain the exclusive owner of all right, title and interest in and to the User Content, including any intellectual property rights relating thereto. Emerge does not acquire any license or other rights to User Content, directly or indirectly, by implication or otherwise, other than those expressly specified in this Agreement. By creating or uploading User Content to the Emerge Platform, you hereby grant Emerge a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to use, reproduce, distribute, display and publish User Content to (a) provide the Emerge Platform and its related services to you, and (b) prevent or address service or technical problems. Emerge has the right, but not the obligation, to monitor the Emerge Platform and User Content. You further agree that Emerge may remove or disable any User Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content), or for no reason at all.
Emerge may help facilitate the resolution of disputes between you and Carriers or Shippers (as applicable), but you acknowledge and agree that Emerge has no control over and does not guarantee (a) the quality, safety, suitability, or legality of any Carrier services, or (b) the performance or conduct of any Carrier, Shipper, or third party.
3. Shipper Terms
In addition to the General User Conditions of this Agreement, Shippers are bound by these Shipper Terms.
Emerge offers you the right to use the Emerge Platform to post and/or assign loads or lanes to a large community of Carriers.You can create and make available (“Post”) to other shippers within the Emerge Platform spot freight “loads” or contract freight “lanes.” Loads are posted as “book now” or “bid” whereas lanes are always posted as bid.
c. Awarding and Tendering.
You can accept a Carrier’s book now or bid by awarding or tendering (collectively known as “assign”) to the Carrier. When assigning to a Carrier, you enter into an agreement to complete that transaction directly with that Carrier or with the ECN.
d. Network Partners.
You are solely responsible for your interactions with Network Partners, and Emerge is not a party to any disputes that may arise between you and the applicable Network Partner, nor does Emerge have any obligation to mediate or facilitate any resolution.
4. Carrier Terms
In addition to the General User Conditions of this Agreement, Carriers are bound by these Carrier Terms. As a Carrier, Emerge offers you the right to use the Emerge Platform to share your logistics services with a large community of shippers.
You can search loads or lanes created by Shippers using criteria like the origin or destination, pickup date(s) and load type. Search results are based on the relevance to your search and other criteria. As loads and lanes are identified, you have the option to book now or bid upon loads and lanes.
c. Contracting with Shippers.
When you receive an award or tender through the Emerge Platform and are a Network Partner of the Shipper, you are entering into an agreement directly with the Shipper. When you receive an award or tender through the Emerge Platform and are a member of the ECN for that Shipper, you are entering into an agreement directly with Emerge and are governed by the terms established in the Emerge Brokerage Agreement.
d. Independence of Shippers.
Your relationship with Emerge is that of an independent individual or entity and not an employee, agent, joint venturer, or partner of Emerge, except that Emerge may act as a payment collection agent as described in the “Fees; Payment” section.
e. Managing Your Account.
A Carrier’s success within the Emerge Platform requires the update of Carrier’s profile, lane preferences and preferred load characteristics.
5. Fees; Payments
Emerge may charge fees (and applicable taxes) to you for the right to use the Emerge Platform (“Service Fees”). More information about when Service fees apply and how they are calculated can be found on our Service Fees page. Emerge reserves the right to change the Service fees at any time, and will provide Users notice of any fee changes before they become effective. Fee changes will not affect Awards or Tenders made or services delivered prior to the effective date of the fee change.
Emerge will invoice you on a monthly basis for all Service Fees accrued during the preceding month, and the amounts due under such invoice shall be payable by you within thirty (30) days after receipt of such invoice.
Emerge may suspend access to the Emerge Platform immediately upon notice if you fails to pay any amounts hereunder at least five (5) days past the applicable due date.
All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). You will be solely responsible for payment of all Taxes, except for those taxes based on the income of Emerge. You will not withhold any Taxes from any amounts due to Emerge.
6. Proprietary Rights
a. Proprietary Rights.
As between the parties, Emerge exclusively owns all right, title and interest in and to the Emerge Platform, System Data and Emerge’s Confidential Information, and you exclusively owns all right, title and interest in and to the User Content and your Confidential Information. “System Data” means data collected by Emerge regarding the Emerge Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Emerge Platform.
b. Service Improvement and Aggregated Statistics.
You further agrees that, notwithstanding anything herein, Emerge has the right to aggregate, collect, retain and analyze User Content and other information relating to the performance of the Emerge Platform (including User Content) and shall be free (during and after the term hereof) to (i) use such data and other information to improve Emerge’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify you, Users, or any individual.
a. Confidential Information. “Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c ) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
8. Representations and Warranties; Disclaimer
Each party warrants that it has the legal power and authority to enter into this Agreement.
You represent and warrant to Emerge that: (i) you have all rights necessary to provide any information, data or other materials that you provide hereunder (including User Content), and to permit Emerge to use the same as contemplated hereunder; and (ii) User Content and other activities in connection with the Emerge Platform, and Emerge’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right.
The Emerge Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Emerge or by third-party providers, or because of other causes beyond our reasonable control, but Emerge shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. EMERGE DOES NOT REPRESENT OR WARRANT THAT THE EMERGE PLATFORM WILL BE ERROR-FREE. The aforementioned disclaimer applies to the maximum extent permitted by law. If you have statutory rights or warranties we cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
a. Indemnity by Emerge.
Emerge will defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against you by a third party alleging that the use of the Emerge Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify you for any damages finally awarded against you (or any settlement approved by Emerge) in connection with any such Claim; provided that (a) you will promptly notify Emerge of such Claim, (b) Emerge will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Emerge may not settle any Claim without your prior written consent, which will not be unreasonably withheld, unless it unconditionally releases you of all related liability) and (c ) you reasonably cooperates with Emerge in connection therewith. If the use of the Emerge Platform by you has become, or in Emerge’s opinion is likely to become, the subject of any claim of infringement, Emerge may at its option and expense (i) procure for you the right to continue using and receiving the Emerge Platform as set forth hereunder; (ii) replace or modify the Emerge Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement. Emerge will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) use of the Emerge Platform by you not in accordance with this Agreement; (B) modification of the Emerge Platform by or on behalf of you; (C) User Content, or (D) the combination, operation or use of the Emerge Platform with other products or services where the Emerge Platform would not by itself be infringing (clauses (A) through (D), “Excluded Claims”). This Section states Emerge’s sole and exclusive liability and obligation, and your exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
b. Indemnification by Customer.
You will defend Emerge against any Claim made or brought against Emerge by a third party arising out of the Excluded Claims, and you will indemnify Emerge for any damages finally awarded against Emerge (or any settlement approved by you) in connection with any such Claim; provided that (a) Emerge will promptly notify you of such Claim, (b) you will have the sole and exclusive authority to defend and/or settle any such Claim (provided that you may not settle any Claim without Emerge’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Emerge of all liability) and (c ) Emerge reasonably cooperates with you in connection therewith.
10. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 2(c) or 7(b), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING YOUR PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”). NOTWITHSTANDING THE FOREGOING, EMERGE’S AGGREGATE LIABILITY FOR BREACH OF SECTION 2(d) AND/OR SECTION 7(b) IN RELATION TO USER CONTENT WILL NOT EXCEED TWO TIMES (2X) THE ORDINARY CAP.
11. Term; Termination
This Agreement will remain in full force and effect so long as you continue to access or use the Emerge Platform, or until terminated in accordance with this Agreement.
You may terminate this Agreement at any time by sending us an email or by deleting your account. Emerge may terminate this Agreement and your account for any reason by giving you 30 days’ notice via email or using any other contact information you have provided for your account. Emerge may also terminate this Agreement immediately and without notice and stop providing access to the Emerge Platform if you breach the terms and conditions of this Agreement, if you violate applicable laws, or if Emerge reasonably believe termination is necessary to protect Emerge, its employees, or third parties. If your account has been inactive for more than two (2) years, we may terminate your account without prior notice.
c. Effects of Termination.
Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the miscellaneous provisions below.
d. Data Retrieval.
Upon written request made on or prior to the termination of this Agreement, Emerge will give you limited access to the Emerge Platform for a period of not less than ninety (90) days after such termination, at no additional cost, solely for purposes of retrieving User Content. You may export your User Content at any time that the User Content is available in the Emerge Platform via export capabilities through the user interface or through Emerge APIs.
You agree that Emerge may refer to your name and trademarks in Emerge’s marketing materials and website; however, Emerge will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
Emerge may modify the terms and conditions of this Agreement at any time. When we make material changes to this Agreement, we will post the revised Agreement on the Site and update the “Last Updated” date at the top of this Agreement. We will also provide you with notice of any material changes by email at least 30 days before the date they become effective. If you disagree with the revised terms and conditions, you may terminate this Agreement immediately as provided hereunder. If you do not terminate your Agreement before the date the revised Agreement becomes effective, your continued access to or use of the Emerge Platform will constitute acceptance of the revised Agreement.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
Any notice required or permitted to be given hereunder will be given in writing by personal delivery, electronic mail, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective contact information provided.
h. Entire Agreement.
i. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware, U.S.A. You agree to the non-exclusive jurisdiction of the courts in the County of Maricopa, Arizona, U.S.A. for any disputes, claim or cause of action arising out of, or relating to or in connection with this Agreement or your use of the Site, including any disputes relating to the existence or validity of this Agreement, provided that you agree to submit any such disputes, claims or causes of action exclusively to the courts of the County of Maricopa, Arizona, U.S.A.
j. Government Terms.
Emerge provides the Emerge Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Emerge Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Emerge Platform was developed fully at private expense.
k. Contacting Emerge.
If you need to contact Emerge regarding the Site, the Emerge Platform, or this Agreement, please e-mail us at [email protected]. You can also contact Emerge via mail addressed to EmergeTech Inc., 9055 E Del Camino Dr. Scottsdale, AZ 85258.