(Shippers)
TUYA Now, LLC (“TUYA”) provides an online marketplace platform (the “Platform”) for use in the United States and its territories and possessions (the “Territory) by shippers of certain qualified Cargo (as defined below) who are located in the Territory, to allow them to (a) list parameters relating to the shipment of such Cargo for local or intrastate delivery on the Platform, so that driver professionals of non-regulated vehicles that have been qualified to access the Platform and perform carriage services (“FDP’s) can evaluate such shipments and, if they desire to accept such shipment, indicate such acceptance; (b) form contractual relationships with such FDP’s that accept such shipments, to engage them to perform such carriage as an independent contractor; (c) make payment to, or facilitate the payment of, such FDP’s in connection with the FDP’s performance of such carriage; (d) make claims for Cargo or other loss; (e) provide feedback with respect to or otherwise provide a rating for each FDP that such Shipper engages to provide carriage of Cargo; and (f) perform related administrative tasks. You are accessing the Platform as a Shipper; accordingly, these Terms of Use (“Terms”) govern your access or use of the Platform, including all applications, websites, content, products and services included therein. Except for TUYA’s privacy policy, no other terms apply. In these Terms, the words “including” and “include” mean “including, but not limited to”.
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “ACCEPT” BELOW OR OTHERWISE USING THE PLATFORM, YOU AGREE THAT THESE TERMS AND THE PRIVACY POLICY CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND TUYA WITH RESPECT TO YOUR USE OF THE PLATFORM, AND YOU AGREE TO BE BOUND BY THESE TERMS AND SUCH PRIVACY POLICY. YOU MAY NOT ACCESS OR USE THE PLATFORM OR ACCEPT THESE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DISAGREE WITH OR DO NOT ACCEPT THESE TERMS AND THE PRIVACY POLICY FULLY AND UNCONDITIONALLY, OR YOU ARE NOT AT LEAST 18 YEARS OF AGE, PLEASE DO NOT PROCEED, AND PLEASE CLOSE OUT THIS BROWSER WINDOW.
By clicking “accept” below or otherwise using the Platform, you agree to be bound by these Terms on an individual basis, if you are acting in an individual capacity and have identified yourself as an individual user of the Platform. If you are acting as an authorized officer, manager or other official of a company, then by accessing or using the Platform, you confirm that you are an authorized representative of such company, you acknowledge that you have identified such company as the user of the Platform where indicated, and you agree, on behalf of yourself and such company, to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Platform. These Terms expressly supersede prior agreements or arrangements with you regarding use of the Platform.
You agree that TUYA may immediately cease offering or deny access to the Platform or any portion thereof, to anyone, at any time, for any reason. Your use of the Platform is at TUYA’s discretion.
TUYA may amend the Terms from time to time. Amendments will be effective upon TUYA’s posting of such updated Terms for your review. IF YOU AGREE TO SUCH AMENDED TERMS UNCONDITIONALLY AND IN FULL, YOU WILL BE ALLOWED TO CONTINUE TO USE THE PLATFORM. IF YOU DISAGREE WITH OR DO NOT ACCEPT SUCH AMENDED TERMS FULLY AND UNCONDITIONALLY, YOU WILL BE ALLOWED THE USE THE PLATFORM FOR AN ADDITIONAL THIRTY (30) DAY PERIOD UNDER THE PRIOR TERMS, AFTER WHICH YOUR ACCOUNT WILL BE DELETED AND YOUR ACCESS TO THE PLATFORM WILL BE TERMINATED.
TUYA’s collection and use of personal information in connection with the Platform is described in TUYA’s Privacy Statements located at www.tuyanow.com
1. PLATFORM DESCRIPTION
The Platform allows Shippers in the Territory to arrange end to end intrastate transportation and/or local delivery services in the Territory by engaging FDP’s, as independent contractors, to perform such services, through the Platform. You agree not to use the Platform, for any purpose, outside of the Territory. You agree that (a) TUYA does not provide delivery and/or logistics services; (b) TUYA is not a Motor Carrier, a Transportation Property Broker, a 3PL or any other FMCSA regulated entity; (c) FDP’s that agree to perform carriage with respect to Cargo you listed on the Platform are independent contractors, and are not employees, partners, agents, contractors, joint venturers or franchisees of TUYA; (d) you have the responsibility to pay such FDP’s for services rendered, and you agree to do so via the Platform; (e) you may not engage or pay an FDP who agrees to provide carriage for Cargo on the Platform, other than through the Platform; and (f) once an FDP accepts carriage of a shipment offered by you via the Platform, a contract between you and the FDP regarding such shipment is created, which creates certain obligations on your part (including payment obligations), and that TUYA is not party to that contract.
2. USING THE PLATFORM
a. General. You agree to use the Platform solely in accordance with these Terms and the privacy policy, as the same may change from time to time.
b. Orders. You must provide accurate and correct information for each offer you place on the Platform for the shipment of Cargo (“Offer”). The Offer information determines the Offer price which is then subject to acceptance by an FDP. TUYA is not responsible for providing any Offer information, nor for the accuracy and/or completeness of any Offer information you provide for use on the Platform. You acknowledge and agree that an FDP accepting your Offer is doing so in reliance upon such Offer information. Each Offer, once accepted by an FDP, is an “Order”. You agree that TUYA may refuse to accept an Offer you propose to place on the Platform and may delete any Offer or Order from the Platform, for any reason, at any time, in its sole discretion.
c. Cancellations. You must promptly remove from the Platform all Offers that you subsequently cancel. Cancellation charges may apply. You may not cancel an Offer after it has been accepted, without compensating the FDP that accepted such Offer by paying the agreed amount stated in the Offer.
d. Order Completion Once the transportation and any other events contemplated by the Order have been fully executed, a proof of delivery (“Proof of Delivery”) will be uploaded to the Platform, provided that TUYA is not liable for any failure to provide a Proof of Delivery.
e. Electronic Notifications. All notifications and activities of the Platform are performed electronically, and by using the Platform, you consent to provide, receive and use all electronic notifications (including, without limitation, emails and text messages). The only exception to this is paperwork that must accompany the shipment as required by law, rule or regulation. You are responsible to provide all required paperwork necessary to facilitate your Offer and any Order, as well as payment to the FDP.
f. Packaging and Marking. You agree to comply with all applicable local, state and federal laws governing packing, packaging, marking and labelling of all Cargo subject to an Offer. Freight must be prepared and packed to withstand the rigors of transportation in an express transportation environment. Each shipment must be legibly and durably marked with the name, address and ZIP code of the recipient. You acknowledge and agree that each FDP may refuse shipments at the time of pickup without liability if, in their reasonable judgement, the shipment is not properly packaged.
g. Restricted Commodities. The following goods may not be the subject of an Offer or an Order on the Platform:
Articles of extreme Value, i.e., antiques, precious stones or metals, artwork, currency,
Bearer bonds
Live animals
Humans
Human remains in any form
Human organs or body parts
Hazardous material in quantities larger than “Limited Quantity” designation
Hazardous waste including medical waste
Explosives
COD Shipments
Unique items
In addition, you agree that the following goods may not be the subject of an Offer or an Order on the Platform without the prior written approval of TUYA.
Tobacco Products
Firearms
Fireworks
Hazardous Material in Limited Quantity packaging
Prescription Drugs
h. You agree to abide by all federal, state, local and any other governing body’s laws, rules, regulations, ordinances or other legal requirements in all activities that include or involve the use of the Platform.
3. LICENSES
a. Accounts In order to use the Platform, you must register for a TUYA account (“Account”) on the Platform and provide certain information as prompted by the registration process. You represent and warrant that all required registration information you submit is truthful and accurate and that you will maintain the accuracy of such information. You may deactivate your Account at any time, for any reason. Such deactivation does not change the liabilities and fees that you have incurred to the point of deactivation. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. You agree to immediately notify TUYA of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. TUYA cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
b. Site Subject to these Terms, TUYA grants you a non-transferable, non-exclusive license to use the Platform for your internal business for as long as you are a user in good standing. You may not grant third-parties access to the Platform nor use the Platform for any purpose other than as described in these Terms.
c. Certain Restrictions The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform, other than as expressly set forth in these Terms; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform; (c) you shall not access the Platform in order to build a similar or competitive platform or service; and (d) except as expressly stated herein, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, backwards engineered, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Platform shall be subject to these Terms. All copyright and other proprietary notices on any Platform content must be retained on all copies thereof.
4. Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Platform and any updates thereto. TUYA does not guarantee that the Platform, or any portion thereof, will function on any hardware or devices, or at all. In addition, the Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. OWNERSHIP
a. Ownership Excluding your User Content (defined below), you acknowledge and agree that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Platform are owned by TUYA or TUYA’s licensors. TUYA’s provision of the Platform does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. TUYA and its suppliers reserve all rights not expressly granted in these Terms.
b. Modification TUYA reserves the right, at any time, to modify, suspend, or discontinue the Platform or any part thereof with or without notice. You agree that TUYA will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform or any part thereof.
c. Feedback If you provide TUYA any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Platform (“Feedback”), you hereby assign to TUYA all rights in the Feedback and agree that TUYA shall have the right to use such Feedback and related information in any manner it deems appropriate. Unless otherwise required under these Terms, TUYA has no obligation to review, respond to, resolve complaints or issues identified in, or otherwise address any Feedback you provide. TUYA will treat any Feedback you provide to TUYA as non-confidential and non-proprietary. You agree that you will not submit to TUYA any information or ideas that you consider to be confidential or proprietary. If you agree to participate in any case studies, you agree that information you provide in connection with the case study is deemed Feedback and that TUYA may use your name in connection with such Feedback.
6. USER CONTENT
a. User Content “User Content” means all information, data, and other content that you submit to, or use with, the Platform. User Content includes Offer information, Order Information and any other information provided by you. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). For the avoidance of doubt, User Content may include third-party content you submit. You agree not to submit third-party content unless you have the consent of the applicable third-party owner of such content. You may not state or imply that Your User Content is in any way provided, sponsored or endorsed by TUYA. You alone are responsible for any liability resulting from your User Content, including, but not limited to, liability resulting from any of your User Content that violates the Acceptable Use Policy. TUYA does not control User Content, and you acknowledge and agree that TUYA assumes no responsibility for any User Content and makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content.
b. License You hereby grant, and you represent and warrant that you have the right to grant, to TUYA an irrevocable, nonexclusive, royalty-free and fully paid, sub-licensable, worldwide license to use your User Content, solely for the purposes of including Your User Content in the Platform and to create Anonymous Data (as defined below). All rights in and to the User Content not expressly granted to TUYA in these Terms are reserved by you.
c. Creation of Anonymous Data TUYA may create anonymous data records (“Anonymous Data”) from your User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that would identify you. TUYA may use and disclose Anonymous Data for any purpose, including to improve the Platform.
d. Certain Disclosures TUYA may share your User Content (a) with TUYA’s third-party Platform providers; (b) if another company acquires TUYA’s company, business, or TUYA’s assets, including through bankruptcy, with such acquiring company; and (c) to comply with relevant laws, to respond to subpoenas or warrants served on us, to protect or defend TUYA’s or TUYA’s Users’ rights or property, and/or to investigate or assist in preventing any violation or potential violation of the law or these Terms.
7. ACCEPTABLE USE POLICY
a. You agree not to use the Platform to collect, upload, transmit, display, or distribute any User Content (a) 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; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, 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 (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
b. In addition, You agree not to use the Platform to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) 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; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to or used together with the Platform, through password mining or other means; (f) harass or interfere with another User’s use and benefit of the Platform; or (g) introduce software or automated agents or scripts to the Platform so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Platform, (h) perform any activity on the platform that TUYA, in its sole discretion, determines is detrimental to the functioning and use of the Platform.
c. TUYA reserves the right (but has no obligation) to review any User Content, investigate, and/or take appropriate action against you at TUYA’s sole discretion (including removing or modifying your User Content, terminating Your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability or potential liability for TUYA or any other person.
8. DISCLAIMERS AND RELEASE
THE PLATFORM IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND TUYA (ON BEHALF OF ITSELF AND ITS AFFILIATES, INCLUDING TUYA DRIVER CLUB, LLC (“TDC”)) 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. IN PARTICULAR, TUYA (AND ITS AFFILIATES) MAKE NO WARRANTY THAT THE PLATFORM: (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 PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. YOUR INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN YOU AND SUCH USER OR THIRD PARTY. YOU AGREE THAT TUYA WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER OR THIRD PARTY, TUYA IS UNDER NO OBLIGATION TO BECOME INVOLVED.
9. LIMITATION ON LIABILITY
IN NO EVENT SHALL TUYA (OR ITS AFFILIATES, INCLUDING TDC) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF, OR INABILITY TO USE, THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR BUSINESS INTERRUPTION, EVEN IF TUYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TUYA’S (AND ITS AFFILIATES’) AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO $500 PER CLAIM, EXCEPT TO THE EXTENT SUCH CLAIM IS CAUSED BY TUYA’S (OR ITS AFFILIATES’, INCLUDING TDC) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. INDEMNITY
YOU AGREE THAT TUYA (AND ITS AFFILIATES (EXCLUDING TDC), AND ITS AND THEIR OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) (COLLECTIVELY, “INDEMNITEES”) WILL NOT BE LIABLE FOR, AND YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST, AND RELEASE THE INDEMNITEES FROM ANY CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES), ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF THE PLATFORM AND/OR ANY ORDERS ARISING THEREON, AND INCLUDING (WITHOUT LIMITATION) ANY LIABILITY FOR OR ARISING DUE IN WHOLE OR PART TO THE FOLLOWING, EXCEPT TO THE EXTENT CAUSED BY SUCH INDEMNITEE’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:
a. personal injuries, death or property damage;
b. loss, delay, or damage to cargo transported by FDP’s using the Platform, and/or injury to or death of, or property loss suffered by, third parties in connection therewith;
c. Acts of God, public enemies, public authorities acting with actual or apparent authority, quarantine, riots, unavailability in whole or in part, fuel, strikes, civil commotions: hazard or dangers incident the state of war; nuclear risk; or any other condition or event beyond the TUYA’s reasonable control;
d. Your or your consignee’s breach of these Terms, the privacy policy, applicable law or any agreement with any third party;
e. The nature of the Cargo, or any defect, characteristic, or inherent vice thereof;
f. Improper or insufficient packaging, securing, marking, addressing, or labeling, of Cargo, and/or failure to observe any law, regulations, or rules relating to the Cargo or the shipment thereof;
g. Your consignee’s failure to observe any law, regulation, or rules pertaining to the Cargo or the shipment thereof;
h. Compliance with your or your consignee’s delivery instructions or non-compliance with your consignee’s or your special instructions which violate these Terms or any laws, regulations, or rules of any governmental or regulatory authority. The FDP does not guaranty that delivery will be effectuated to meet any particular market, dispatch, exhibition, setting, or pre-set delivery parameter; or
i. Any noted discrepancy of a Shipper Load and Count order still sealed on arrival at the consignee location.
11.THIRD PARTY SITES & ADS
The Platform might contain links to third party websites, Platforms, and advertisements for third parties (collectively, “Third-Party Sites & Ads”). Such Third-Party Sites & Ads are not under the control of TUYA and TUYA is not responsible for any Third-Party Sites & Ads. TUYA provides these Third-Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Sites & Ads. You use all Third-Party Sites & Ads at Your own risk. When you link to a Third-Party Site & Ad, the applicable third party’s terms and policies apply, including the Third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Sites & Ads.
12.COPYRIGHT/TRADEMARK INFORMATION
All trademarks, logos and Platform marks (“Marks”) displayed on the Platform are TUYA property or the property of other third parties. You are not permitted to use these Marks without TUYA’s prior written consent or the written consent of such third party which may own the Marks.
13.ELECTRONIC COMMUNICATIONS
You consent to receive communications from TUYA in an electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that TUYA provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
14. DISPUTES
ALL CLAIMS AND DISPUTES ARISING UNDER OR RELATING TO THESE TERMS ARE TO BE SETTLED BY BINDING ARBITRATION IN HARRIS COUNTY, IN THE STATE OF TEXAS. THE ARBITRATION SHALL BE CONDUCTED ON A CONFIDENTIAL BASIS PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY DECISION OR AWARD AS A RESULT OF ANY SUCH ARBITRATION PROCEEDING SHALL BE IN WRITING AND SHALL PROVIDE AN EXPLANATION FOR ALL CONCLUSIONS OF LAW AND FACT AND SHALL INCLUDE THE ASSESSMENT OF COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES. ANY SUCH ARBITRATION SHALL BE CONDUCTED BY AN ARBITRATOR EXPERIENCED IN MARKETPLACE PLATFORMS, DIGITAL PLATFORM OR SHARED ECONOMY TECHNOLOGY AND SHALL INCLUDE A WRITTEN RECORD OF THE ARBITRATION HEARING. THE PARTIES RESERVE THE RIGHT TO OBJECT TO ANY INDIVIDUAL WHO SHALL BE EMPLOYED BY OR AFFILIATED WITH A COMPETING ORGANIZATION OR ENTITY. AN AWARD OF ARBITRATION MAY BE CONFIRMED AND ENFORCED IN A COURT OF COMPETENT JURISDICTION.
EACH OF YOU AND TUYA AGREE TO ARBITRATE ANY DISPUTE (WHETHER CHARACTERIZED AS A CONSUMER, BUSINESS OR OTHER DISPUTE) ON AN INDIVIDUAL BASIS, AND EACH WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION OF ANY TYPE WITH RESPECT TO THESE TERMS, THE PRIVACY POLICY AND THE PLATFORM.
15. NON-SOLICITATION
YOU AGREE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES, SOLICIT FOR HIRE OR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, OR HIRE OR ENGAGE AS AN INDEPENDENT CONTRACTOR, ANY EMPLOYEE OR INDEPENDENT CONTRACTOR OF TUYA OR TDC WITH WHOM YOU HAD INTERACTION DURING THE TIME PERIOD THAT YOU WERE GRANTED ACCESS TO THE PLATFORM. THIS PROVISION WILL NOT APPLY TO ANY EMPLOYEE OR INDEPENDENT CONTRACTOR OF TUYA WHO RESPONDS TO A GENERAL SOLICITATION FOR EMPLOYMENT OR ENGAGEMENT PLACED BY YOU IN ANY PUBLICATION OR ONLINE. THE RESTRICTIONS SET FORTH IN THIS SECTION WILL APPLY FROM THE DATE YOU ARE GRANTED ACCESS TO THE PLATFORM, UNTIL THE EXPIRATION OF ONE YEAR FROM THE EARLIER TO OCCUR OF (A) THE DATE YOUR ACCESS TO THE PLATFORM IS TERMINATED, FOR ANY REASON; AND (B) THE MOST RECENT DATE ON WHICH YOU PLACED AN OFFER FOR THE SHIPMENT OF CARGO ON THE PLATFORM.
16. SEVERABILITY
Any part of these Terms that is held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of these Terms or affecting the validity or enforceability of any of these Terms in any other jurisdiction.
By clicking “accept” below or otherwise using the Platform, you agree to be bound by these TDC Terms on an individual basis, if you are acting in an individual capacity and have identified yourself as an individual user of the Platform. If you are acting as an authorized officer, manager or other official of a company, then by accessing or using the Platform, you confirm that you are an authorized representative of such company, you acknowledge that you have identified such company as the user of the Platform where indicated, and you agree, on behalf of yourself and such company, to be bound by these TDC Terms. If you do not agree to these TDC Terms, you may not access or use the Platform. These TDC Terms expressly supersede prior agreements or arrangements between you and TDC regarding engagement of FDP’s using the Platform.
TDC may amend the TDC Terms from time to time. Amendments will be effective upon TDC’s or TUYA’s posting of such updated TDC Terms for your review. IF YOU AGREE TO SUCH AMENDED TERMS UNCONDITIONALLY AND IN FULL, YOU WILL BE ALLOWED TO CONTINUE TO USE THE PLATFORM. IF YOU DISAGREE WITH OR DO NOT ACCEPT SUCH AMENDED TERMS FULLY AND UNCONDITIONALLY, YOU WILL BE ALLOWED THE USE THE PLATFORM FOR AN ADDITIONAL THIRTY (30) DAY PERIOD UNDER THE PRIOR TDC TERMS, AFTER WHICH YOUR ACCOUNT WILL BE DELETED AND YOUR ACCESS TO THE PLATFORM WILL BE TERMINATED.
Capitalized terms used herein and not defined herein have the meanings set forth in the Terms and Conditions between you and TUYA.
1. ENGAGING FDP’S
You agree that (a) TDC does not provide delivery and/or logistics services; (b) TDC is not a Motor Carrier, a Transportation Property Broker, a 3PL or any other FMCSA regulated entity; (c) FDP’s that agree to perform carriage with respect to Cargo you listed on the Platform are independent contractors, and are not employees, partners, agents, contractors, joint venturers or franchisees of TDC; (d) you have the responsibility to pay such FDP’s for services rendered, and you agree to do so via the Platform; (e) you may not engage or pay an FDP who agrees to provide carriage for Cargo on the Platform, other than through the Platform; and (f) once an FDP accepts carriage of a shipment offered by you via the Platform, a legal contract between you and the FDP regarding such shipment is created, which creates certain legal obligations on your part (including payment obligations), and that TDC is not party to that contract.
2. RATES & PAYMENTS
a. You acknowledge and agree that each FDP has designated TDC as its Payment Service Provider.
b. The Offer price in effect at the time you place the Offer is placed and accepted will govern that Order. All Offer prices will be in US dollars.
c. You agree to pay in full the amount set forth in the accepted Order by electronic means (i.e. credit card, merchant card, ACH, etc.) to TDC in its capacity as Payment Service Provider, on receipt of a Proof of Delivery, unless prior credit arrangements have been made with TDC.
d. You acknowledge and agree that accessorial charges may be added to the fees for an Order up to 24 hours after actual delivery based on the time and location of the delivery. Terms for additional, supplemental charges are the same as those stated above. You are liable for, and agree to promptly pay, all accessorial charges, for all shipments made pursuant to your Orders.
e. You acknowledge and agree that inaccurate or incomplete Offer Information provided by the Shipper may result in additional charges being added to the accepted Offer price.
f. You agree to promptly pay for any Orders completed through the Platform. You agree that you will not pay FDP’s for any Orders other than by and through TDC in its capacity as Payment Service Provider and will not circumvent or attempt to circumvent payment by and through TDC in any way. All payments will be made in US dollars.
g. You acknowledge and agree that neither TUYA nor TDC is responsible for collecting, reporting, paying, or remitting to you or for you, any taxes including sales taxes, GST, VAT or other taxes which may be levied. You are solely responsible for payment of any taxes arising out of the shipment of Cargo pursuant to Orders that you initiated through the Platform, and you agree to pay such taxes promptly and in full when due.
h. You agree to fully cooperate, at your own cost, upon request by TDC or TUYA to promptly resolve any questions, concerns or disputes regarding your participation on the Platform, any Offer or Order, any shipment involving Cargo that was subject to your Offer, or any other matter reasonably related to the foregoing. You agree to promptly provide any documents or information regarding any of the foregoing upon request by TDC or TUYA.
i. You agree to be liable for any expenses, including attorney fees, incurred to collect amounts owed by you with respect to your use of the Platform and/or any Orders.
3. CLAIMS
In the event any Cargo subject to an Order is lost or damaged in transit while being transported by an FDP, you agree to seek recourse for such loss or damage SOLELY from TDC, and you hereby FOREVER RELEASE TUYA AND ANY AND ALL FDP’S FROM ANY LIABILITY WITH RESPECT TO LOSS OF OR DAMAGE TO CARGO, OR DELAY IN DELIVERY, REGARDLESS OF CAUSE. Subject to you being in full compliance with these TDC Terms at the time of such loss or damage, and subject to your strict compliance with the foregoing sentence, TDC will be responsible for the replacement value of such lost or damage Cargo, up to $100,000 per occurrence (provided that you may increase this limit of liability prior to pick-up by paying additional charges to TDC
NOTWITHSTANDING THE FOREGOING, TDC WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO CARGO TO THE EXTENT CAUSED BY ACTS OF GOD, INHERENT VICE OR DEFECT, ACTS OF PUBLIC AUTHORITIES, ACTS OF PUBLIC ENEMIES AND/OR YOUR ACTS OR OMISSIONS. TDC WILL NOT BE LIABLE IN ANY EVENT FOR ANY DAMAGES FOR DELAY IN DELIVERY. Unless you pay additional amounts for a higher limit of liability as described above, YOU AGREE TO FOREVER RELEASE TDC AND ITS AFFILIATES FROM, AND INDEMNIFY, DEFEND AND HOLD TDC AND ITS AFFILIATES HARMLESS FROM AND AGAINST, ANY LIABILITY WITH RESPECT TO LOSS OF OR DAMAGE TO CARGO IN EXCESS OF $100,000 PER OCCURRENCE, OR DELAY IN DELIVERY, REGARDLESS OF CAUSE.
You agree to make all such claims for loss of or damage to Cargo solely through the Platform. You agree to promptly and reasonably cooperate with TDC’s or its designee’s investigation of the claim and any request by TDC or its designees for documents or information relating to such loss or damage, and to agree to obtain and provide to TDC such documents and/or information as soon as possible, at your own cost. All such claims must be made within one-hundred and eighty (180) days after the loss or damage occurred.
TDC will promptly pay any verified claims following investigation. TDC will be entitled to salvage.
4. INDEMNITY
YOU AGREE THAT TUYA DRIVERS CLUB, AND ITS AND THEIR OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) (COLLECTIVELY, “INDEMNITEES”) WILL NOT BE LIABLE FOR, AND YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST, AND RELEASE THE INDEMNITEES FROM ANY CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES), ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF THE PLATFORM AND/OR ANY ORDERS ARISING THEREON, AND INCLUDING (WITHOUT LIMITATION) ANY LIABILITY FOR OR ARISING DUE IN WHOLE OR PART TO THE FOLLOWING, EXCEPT TO THE EXTENT CAUSED BY SUCH INDEMNITEE’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:
a. personal injuries, death or property damage;
b. Acts of God, public enemies, public authorities acting with actual or apparent authority, quarantine, riots, unavailability in whole or in part, fuel, strikes, civil commotions: hazard or dangers incident the state of war; nuclear risk; or any other condition or event beyond the TUYA’s reasonable control;
c. Your or your consignee’s breach of these Terms, the privacy policy, applicable law or any agreement with any third party;
d. The nature of the Cargo, or any defect, characteristic, or inherent vice thereof;
e. Improper or insufficient packaging, securing, marking, addressing, or labeling, of Cargo, and/or failure to observe any law, regulations, or rules relating to the Cargo or the shipment thereof;
f. Your consignee’s failure to observe any law, regulation, or rules pertaining to the Cargo or the shipment thereof;
g. Compliance with your or your consignee’s delivery instructions or non-compliance with your consignee’s or your special instructions which violate these Terms or any laws, regulations, or rules of any governmental or regulatory authority. The FDP does not guaranty that delivery will be effectuated to meet any particular market, dispatch, exhibition, setting, or pre-set delivery parameter; or
h. Any noted discrepancy of a Shipper Load and Count order still sealed on arrival at the consignee location.
5. DISPUTES
ALL CLAIMS AND DISPUTES ARISING UNDER OR RELATING TO THESE TDC TERMS ARE TO BE SETTLED BY BINDING ARBITRATION IN HARRIS COUNTY, IN THE STATE OF TEXAS. THE ARBITRATION SHALL BE CONDUCTED ON A CONFIDENTIAL BASIS PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY DECISION OR AWARD AS A RESULT OF ANY SUCH ARBITRATION PROCEEDING SHALL BE IN WRITING AND SHALL PROVIDE AN EXPLANATION FOR ALL CONCLUSIONS OF LAW AND FACT AND SHALL INCLUDE THE ASSESSMENT OF COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES. ANY SUCH ARBITRATION SHALL BE CONDUCTED BY AN ARBITRATOR EXPERIENCED IN MARKETPLACE PLATFORMS, DIGITAL PLATFORM OR SHARED ECONOMY TECHNOLOGY AND SHALL INCLUDE A WRITTEN RECORD OF THE ARBITRATION HEARING. THE PARTIES RESERVE THE RIGHT TO OBJECT TO ANY INDIVIDUAL WHO SHALL BE EMPLOYED BY OR AFFILIATED WITH A COMPETING ORGANIZATION OR ENTITY. AN AWARD OF ARBITRATION MAY BE CONFIRMED AND ENFORCED IN A COURT OF COMPETENT JURISDICTION.
EACH OF YOU AND TDC AGREE TO ARBITRATE ANY DISPUTE (WHETHER CHARACTERIZED AS A CONSUMER, BUSINESS OR OTHER DISPUTE) ON AN INDIVIDUAL BASIS, AND EACH WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION OF ANY TYPE WITH RESPECT TO THESE TDC TERMS.
