SHIPPER TERMS OF SERVICE
These terms of service (“TOS”) apply to all Service Agreement or orders (each, an “Order”) that a customer tenders to Next Trucking, Inc. (“Next Trucking”) or Next Freight Solutions, Inc. (“NFSI”) (collectively, along with all other applicable affiliated entities, the “Next Corporate Group”) or any parent, subsidiary or affiliated entity of the Next Corporate Group, for the shipment of cargo. Unless specifically otherwise agreed to, these TOS supersede all previous terms and conditions and other prior statements concerning the rates, payment and other terms concerning Orders and shipments with the Next Corporate Group.
1.1 The Service www.nexttrucking.com (the “Site”) and the associated mobile application (“Mobile App”) (collectively the “Platform”) connects entities who need to ship cargo (“Shipper(s)”) to transportation providers (collectively, with all services provided on the site and mobile app, the “Service(s)”). Certain features of the Platform and the Service may be subject to additional guidelines, terms, or rules, which will be provided in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into TOS (defined below).
1.2 Definitions: (a) Order: an Order shall be defined as a request for transportation services submitted by the Shipper to either Next Trucking or NFSI; (b) Tender: a Tender shall be defined as the submission of a Shipment for transport from and to locations identified by the Shipper and at the rates, charges and applicable payment terms agreed to by the Parties as set forth herein, the TOS or on the Platform, if applicable; (c) Shipment: property or equipment to be transported pursuant to the terms of this Agreement, the TOS or any other applicable requirements of the Platform.
2. General Brokerage Terms.
2.1 The parties understand and agree that Next Trucking 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 Next Trucking shall be performed by third-party Servicing Carriers.
2.2 Next Trucking is registered as a freight broker with the Federal Motor Carrier Safety Administration (FMCSA). Shipper acknowledges that Next Trucking is not a “motor carrier,” “rail carrier,” “water carrier,” “freight forwarder,” “common carrier,” or “contract carrier” within the meaning of USC Titles 47 and 49. As a broker, Next Trucking fulfills Shipper requests for transportation services by arranging for the transportation of Shipper’s cargo by contracting with various Servicing Carriers. Next Trucking provides brokerage services under these TOS and any applicable Service Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the cargo covered by these TOS.
2.3 Freight carriage. Next Trucking will enter into, bilateral contracts with each Servicing Carrier. Such agreements shall comply with all applicable federal and state regulations and shall include the following provisions: (a) Servicing Carrier shall agree to defend, indemnify and hold Next Trucking and Shipper harmless from all damages, claims or losses arising out of its performance, including cargo loss and damage, theft, delay, damage to property, and personal injury or death; (b) Servicing Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a common carrier as provided for in 49 USC § 14706 (the Carmack amendment) – insufficiency of Servicing Carrier’s insurance coverage or exclusions in Servicing Carrier’s insurance coverage shall not exonerate Servicing Carrier from this liability; (c) Servicing Carrier shall agree to maintain at all times during the term of the contract, the minimum insurance coverage required by the Federal Motor Carrier Safety Regulations (“FMCSR”) or the limits requested by Shipper; (d) Servicing Carrier shall comply with 49 CFR 370.1 et seq. regarding the processing of claims for loss, damage, injury or delay to property and the processing of salvage; (e) Next Trucking shall invoice Shipper via the Platform for Services provided by the Servicing Carrier and shall further agree that Next Trucking is the sole party responsible for payment of its invoices and that, under no circumstance, Servicing Carrier will not seek payment from the Shipper, Consignee or Next Trucking’s customer; (f) Servicing Carrier shall agree that it shall not have an “unsatisfactory” safety rating as determined by the FMCSA at any time it agrees to accept a shipment tendered by Shipper; (g) Any term in a Servicing Carrier contract which is inconsistent with the Shipper’s obligations hereunder shall be subordinate to the terms of the applicable Service Agreement and these TOS; (h) Servicing Carrier shall expressly waive all rights and remedies under Title 49 U.S.C., Subtitle IV, Part B to the extent they conflict with the contract.
2.4 Each booking of services on the Platform shall be subject to a Service Agreement which shall incorporate the terms set forth herein in full and other terms and conditions necessary to complete the service. If Next Trucking so chooses, the bill of lading issued for a shipment may include the ancillary terms and conditions not outlined in these TOS or the applicable Service Agreement.
2.5 Receipts and Bills of Lading. If requested by Shipper, Next Trucking agrees to provide Shipper with proof of acceptance and delivery of such loads in the form of a signed bill of lading or proof of delivery, as specified by Shipper. Shipper’s insertion of Next Trucking’s name on the bill of lading shall be for Shipper convenience only and shall not change Next Trucking’s status as a property broker. The terms and conditions of any freight documentation used by Next Trucking or Servicing Carrier selected by Next Trucking may not supplement, alter, or modify the terms of these TOS or the Service Agreement.
2.6 Insurance. Next Trucking shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond to benefit the Shipper.
3. General Carrier Terms – NFSI.
3.1 Freight documentation. The parties will utilize the freight documentation forms (electronic or otherwise) provided via the Platform. The terms and conditions of this Agreement shall prevail over those appearing on that form or any other form(s) used by the parties for the delivery of freight. Any form(s) used by the parties shall only be used to document the pick-up and delivery of freight. Either party, at its option, may supply any document required by or referenced in this Agreement in either paper or electronic form (including, but not limited to, an electronically imaged, faxed, photocopied, or online posted version), and any such version shall be sufficient for all purposes under this Agreement.
3.2 Unless specifically agreed to by the parties, any joint movement involving another transportation entity to or from a point outside the United States shall not be considered as moving on a “through” bill of lading. NFSI may subcontract, interline, or to use “substituted Services” by motor carrier without the specific approval of Shipper. However, NFSI shall not broker a load to another motor carrier. NFSI shall be liable to Shipper for any cargo loss, damage, or injury to the same extent as if NFSI performed the Service.
4. Shipper Obligations
4.1 Shipper shall be responsible to Next Trucking or NFSI as applicable, for timely and accurate delivery instructions and description of the cargo, including any special handling requirements, for any shipment.
4.2 Disclosure of Free Time for containers and/or chassis. Shipper shall disclose to Next Trucking or NFSI, as applicable, the period of time offered free of charge by any owner (other than Next Trucking, NFSI or any Servicing Carrier) of the equipment (e.g., containers and chassis) used to transport Shipper’s goods, covering both demurrage and detention period or any other applicable period wherein such equipment is held by NFSI or a Servicing Carrier, beyond which additional charges such as, but not limited to demurrage, detention or Per Diem charges, will be due (“Free Time”). Shipper shall regularly update Next Trucking or NFSI, as applicable, of any changes to the Free Time allotted to all containers or chassis used to transport Shipper’s goods.
4.3 Shipper shall solely be responsible for packaging, loading, unloading, blocking, and bracing of the shipment for safe transportation. Shipper shall be responsible for the proper securing and application of a high-security cable or bolt type seal to the container before transportation. The type of seal utilized in securing the container must be agreed upon by the parties
4.4 Shipper shall prepare and properly package all shipments appropriately for transportation by Servicing Carrier and Shipper warrants that any trailers or equipment tendered for transportation are not overweight or over-dimension.
4.5 Shipper shall ensure that the Servicing Carrier(s) or NFSI, as applicable, shall have access to loading and unloading facilities for shipments and that all such facilities shall be maintained in a good and safe condition and in compliance with all applicable laws and regulations.
4.6 Shipper represents and warrants that, at all times, it will be in compliance with all applicable laws, rules and regulations or any governmental authority (“Laws”) including applicable Laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried. Shipper agrees to furnish such information and complete and attach to the bill of lading such documents as are necessary to comply with such Laws. Any agent acting on behalf of Shipper in scheduling shipments or undertaking any other performance hereunder warrants and represents that it has the right to act on behalf of and legally bind Shipper. Next Trucking, or any Servicing Carrier (including NFSI) assumes no liability for any loss or expense due to the failure of Shipper to comply with this paragraph.
4.7 Shipper waives and releases Next Trucking from all liability for any loss or damage or injury to Shipper’s property, personnel, or facilities.
5. Exclusivity. Shipper shall not be restricted from tendering freight to other brokers or directly to Servicing Carriers. Next Trucking shall not be restricted from arranging transportation for other parties. NFSI shall not be restricted from providing transportation services to other shippers.
6. Limitations of Liability.
6.1 Broker Limitations of Liability.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEXT TRUCKING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THE PLATFORM OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THE PLATFORM. NEXT TRUCKING CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE.
(b) Shipper acknowledges and agrees that a Servicing Carrier may limit Shipper’s recovery for claims for cargo loss, damage, or delay. Next Trucking further does not guarantee that a Servicing Carrier will be available with insurance policy limits above the FMCSR’s minimum requirements unless otherwise expressly agreed to by Next Trucking and a willing Servicing Carrier.
(c) Next Trucking shall not be liable for delay, or damages arising from delay, for any reason or under any circumstances, unless agreed to between the parties before shipment tender in writing and signed by an authorized representative of Next Trucking.
(d) Next Trucking is not bound to arrange transportation with any particular Servicing Carrier, for any particular market or markets, other than to arrange for the transportation of the freight with a licensed Servicing Carrier with reasonable dispatch. Such brokerage services shall be limited to how the Platform organizes and offers of shipping opportunities to Shipper and Servicing Carriers.
6.2 NFSI Limitation of Liability – Cargo Liability.
(a) NFSI shall be liable to Shipper for loss or damage to lading occurring while it is in NFSI’s possession, except to the extent such loss or damage is caused by an act of God or a public enemy, a public authority, an act of Shipper, or the inherent vice or nature of the lading. NFSI’s possession of lading under the Service Agreement and these TOS shall begin when NFSI has executed the freight documentation form for such lading and shall terminate upon the lading being tendered for delivery to Shipper’s consignee.
(b) NFSI’s monetary liability will be limited to the amount of cargo insurance provided in the Service Agreement. If Shipper asserts that the value of lading on a particular shipment shall exceed this amount, NFSI shall be advised twenty-four (24) hours before the time of tendering a load. NFSI may refuse the load or secure additional cargo insurance in the amount of liability Shipper claims, the cost of which shall be invoiced to Shipper as part of freight charges. Shipper also shall note any separately agreed value on the applicable freight documentation forms.
(c) The measure of damages for loss of or physical damage to the cargo shall be the invoice value of the lading. Servicing Carrier also shall be liable for the reasonable costs of the Shipper to mitigate its damages.
6.3 In no event shall Next Trucking, NFSI or a Servicing Carrier be liable to Shipper or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless Shipper has informed Next Trucking and / or NFSI, as applicable, in written or electronic form, prior to or when tendering a shipment or series of shipments, of the potential nature and type of such damages, and the relevant party specifically agrees in written or electronic form to accept responsibility for such damages. In no event shall Next Trucking or NFSI be liable to Shipper or anyone else for punitive or exemplary damages that relate to loss, damage or delay to a shipment. Neither Next Trucking, NFSI nor a Servicing Carrier shall have liability to Shipper under this Section 6, or otherwise owe any obligation to Shipper under this provision, to the extent such liabilities or obligations are the result of or arise from the negligence or other wrongful conduct of Shipper or any third party.
6.4 Legal restraint or force majeure. In the event performance by one party is affected by any cause beyond the reasonable control of such party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, or governmental request or requisition for national defense, and provided that the applicable cause is not attributable to the acts or omissions of such party, and such party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time mentioned herein and the performance of all obligations required herein shall be suspended during the continuance of such interruption, and such party shall promptly notify the other party of such interruption. Such a period of suspension shall not in any way invalidate the Service Agreement or these TOS, but on the resumption of operations, any affected performance by such party shall resume. Next Trucking and NFSI, as applicable, shall be permitted an extension period equal to the period of suspension to complete shipments adversely affected by the suspension. Either party shall incur no liability for damages resulting from such suspensions.
7.1 Freight claims.
(a) Shipper must file claims for cargo loss or damage with Next Trucking and/or NFSI, as applicable, within six (6) months from the date of such loss, shortage or damage, which for purposes of the Agreement shall be the delivery date or, in the event of non—delivery, the scheduled delivery date. Shipper must initiate the dispute resolution procedures outlined in the Platform’s arbitration policy within one (1) year from the date the Servicing Carrier, Next Trucking or NFSI provides written notice to Shipper that the Servicing Carrier or NFSI has disallowed any part of the claim in the notice.
(b) NFSI’s or a Servicing Carrier’s cargo liability for any shipment shall not exceed $100,000 unless Next Trucking or NFSI, as applicable, is notified by Shipper of the increased value before shipment pickup and with reasonable advance notice to allow Next Trucking, NFSI, or the Servicing Carrier to procure additional insurance coverage.
(c) It is understood and agreed that the Next Trucking is not a Servicing Carrier and that the Next Trucking shall not be held liable for loss, damage or delay in the transportation of Shipper’s property unless caused by Next Trucking’s negligent acts or omissions in the performance of this Agreement. Next Trucking shall assist Shipper in the filing or processing of claims with the Servicing Carrier.
(d) If Next Trucking pays Shipper for a claim, Shipper automatically assigns its rights and interest in the claim to Next Trucking to allow Next Trucking to subrogate its loss.
(e) In no event shall Next Trucking, NFSI or Servicing Carrier be liable to Shipper or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless Shipper has informed Next Trucking and/or NFSI, as applicable, in written or electronic form, prior to or when tendering a shipment or series of shipments to Next Trucking or NFSI, of the potential nature, type and approximate value of such damages, and Next Trucking and/or NFSI, as applicable, specifically agrees in written or electronic form to accept responsibility for such damages.
(f) Claims for alleged undercharge or overcharge shall be filed with the appropriate party within one hundred and eighty (180) days of the date of the invoice issued hereunder. Any action at law by either party to collect alleged undercharges or overcharges under the terms of this Agreement shall be commenced no later than eighteen (18) months after delivery of shipment.
7.2 All Other Claims. the parties shall notify each other within sixty (60) days of learning of any claims other than cargo loss or damage claims, and shall file any such claims with the other party within one hundred eighty (180) days from the date of the notice. The civil claim, if any, shall be commenced under the dispute resolution provisions contained herein, within one (1) year from the date either party provides written notice to the other party of such a claim.
7.3 Claims Related to an Invoice. Any dispute of any invoice shall be made in writing, specifically indicating the nature of the dispute and delivered to Next Trucking or NFSI, as applicable, within thirty (30) days from the date of the invoice or any such dispute will be deemed waived and the invoice will be conclusively presumed to be valid.
8.1 Next Trucking shall indemnify, defend and save Shipper, its employees, and agents harmless from and against any liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of Next Trucking’s services provided in connection with this Agreement to the extent such claim is caused by (i) the negligence or intentional misconduct of Next Trucking; (ii) Next Trucking’s or its employees’ violation of applicable laws or regulations; or (iii) Next Trucking’s or its employees’ or agents’ breach of this Agreement.
8.2 All Servicing Carriers (inclusive of NFSI) who provide service to Shipper hereunder, shall defend, indemnify, and hold Shipper and its employees and agents harmless from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) caused by and resulting from (i) the negligence or intentional misconduct of Servicing Carrier or its employees or agents, or (ii) Servicing Carrier’s or its employees’ or agents’ violation of applicable laws or regulations. The preceding notwithstanding, this Paragraph 8.2 shall not limit the indemnification provided by a Servicing Carrier, or any agreement Servicing Carrier has entered into with Next Trucking.
8.3 Shipper shall defend, indemnify, and hold Next Trucking, NFSI, and/or Servicing Carrier, as applicable, and their employees and agents harmless from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) caused by and resulting from (i) the negligence or intentional misconduct of Shipper, its employees, or agents, or (ii) Shipper’s or its employees’ or agents’ violation of applicable laws or regulations.
8.4 In the event such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) are caused by the joint and concurrent negligence of the parties, or the parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) shall be borne by each party in proportion to its degree of fault.
8.5 Any indemnified party under this Section 8 shall promptly tender the defense of any claim to the indemnifying party.
9. Lien. Next Trucking or NFSI, as applicable, shall have a lien on all of Shipper’s shipments for all sums owed under any Service Agreement or these TOS.
10. Dispute resolution. ANY DISPUTE ARISING UNDER OR RELATED TO ANY SERVICE PROVIDED UNDER A SERVICE AGREEMENT, and THESE TOS SHALL BE RESOLVED IN ACCORDANCE WITH THE PLATFORM’S ARBITRATION PROCEDURES WHICH CAN BE FOUND AT www.nexttrucking.com.
11. Rules and Other Provisions Which Govern. Except as provided in these TOS, the rules and regulations herein apply in connection with the rates or transportation contracts referring to these TOS issued by Next Trucking, NFSI, or on the Platform, or reissues thereof. All shipments arranged by Next Trucking, or transported by NFSI, and not transported under a contract, are subject to the provisions of the applicable Service Agreement, which incorporate by reference, the terms contained herein, and any succeeding issues thereof. Any subsequent agreements which are silent as to any of the provisions contained in these TOS will be interpreted according to these TOS, and succeeding issues thereof.
12.1 Notices. All notices and other communications hereunder or under the Services Agreement shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses outlined in the applicable Service Agreement.
12.2 Captions. The captions outlined in this Agreement are for convenience only and shall not be considered a part of this Agreement nor affect in any way the meaning of the terms and provisions hereof.
12.3 Successors and Assigns; Other Parties. Assignment; Change of Control. The Service Agreement and these TOS will be binding upon and will inure to the benefit of each Party and each Party’s respective transferees, successors and assigns. Neither Party shall assign or transfer their obligations under the Service Agreement and these TOS to a third party without the prior written consent of the other Party. Notwithstanding the foregoing, neither Party shall be required to obtain the prior written consent of the other Party in the event of a change in control of such Party, provided that the acquirer(s) assumes the acquired Party’s obligations hereunder after such change of control. For the purposes of this paragraph, “Change in Control” means (a) a merger or consolidation with parent, subsidiary or affiliated entities, (b) a transaction or series of related transactions in which a third party, together with its affiliates, becomes the beneficial owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of a Party, or (c) the sale of all or substantially all of the assets of a Party. Any attempted assignment in contravention of this Paragraph 12.3 will be null and void.
12.4 Attorneys’ Fees. Should any proceeding (including arbitration or litigation) be commenced between the Parties hereto concerning the terms of the Service Agreement, these TOS, or any terms, guidelines, and rules applicable to the Platform, or the rights and duties of the Parties hereto, the prevailing party in such proceeding or litigation shall be entitled, in addition to such other relief as may be granted, to recover reasonable attorney’s fees and costs.
12.5 Entire Agreement. These TOS and the Service Agreement into which these TOS are incorporated, and the documents or agreement expressly constitutes the entire Agreement between the parties hereto and supersedes all prior Agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed, or implied, concerning the subject matter hereof.
12.6 Amendments. No amendment or modification of the terms of this Agreement shall be binding unless in writing and signed by the parties. This Agreement may not be assigned or transferred in whole or in part. This Agreement shall be binding upon and inure to the benefit of the parties hereto.
12.7 Severability. Any term or provision of this Agreement 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 this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
12.8 Waiver. No waiver of any right, power, or privilege hereunder shall be binding upon any party unless in writing and signed by or on behalf of the party against which the waiver is asserted.
12.9 Counterparts. This Agreement may be executed in one or more counterparts, any or all of which shall constitute the same instrument.
12.10 Governing Law. The parties desire that the provisions of this Agreement will have precedence over any federal or state provisions governing or dealing with the specific provisions of this Agreement. The parties agree that under 49 U.S.C. § 14101(b)(1) they expressly waive all rights and remedies under the Interstate Commerce Commission termination act and Interstate Commerce Act as amended, and regulations promulgated thereunder, including Part B of Subtitle IV interstate transportation, 49 U.S.C. § 13101, et seq, (the “Acts”) that are inconsistent with the provisions of this Agreement. No party shall challenge any provision of this Agreement on the ground that any such provision or provisions violate the waived rights and remedies under the acts. To the extent no conflicts exist with this Agreement or federal law, the law of the state indicated in the Shipper’s address in the signatory provision hereof shall apply.
12.11 No Use of the Name. Neither party may use the other’s name, trademarks, or trade names, or those of its subsidiaries or affiliates, in any manner, especially advertising, without the other’s expressed written consent, which may be withheld in such party’s sole discretion.
12.12 Compliance with laws and regulations. The parties shall at all times comply with all applicable federal, state, municipal, and provincial laws, rules, and regulations including, but not limited to, the federal and state safety regulations. To the extent this Agreement or any Services provided hereunder shall conflict with such laws, rules, and regulations, this Agreement and the Services provided hereunder shall be modified to comply with such laws, rules, and regulations, and the parties shall not be deemed in breach of this Agreement or suffer any liability or penalty for compliance with such laws, rules, and regulations. In the event a Servicing Carrier, through no fault of its own, is delayed or removed from Service by or because of inspection by any body politic, Servicing Carrier shall not be deemed in breach of this Agreement, nor shall it suffer any liability or penalty under the terms of this Agreement.
CARRIER TERMS OF SERVICE
The website located at https://nexttrucking.com/ (the “Site”) and the associated mobile application (“Mobile App”) are copyrighted works belonging to NEXT Trucking, Inc. (“NEXT Trucking,” “us,” and “we”). NEXT Trucking provides a service that connects truckers (“Carriers”) to entities who need to ship cargo (“Shippers”) (collectively, with all services provided on the Site and Mobile App, or through the VIP Driver program or Rewards thereunder, the “Service(s)”). Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be provided in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement (defined below).
THESE TERMS OF SERVICE (“AGREEMENT”) SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING THIS AGREEMENT, ON BEHALF OF YOURSELF OR THE COMPANY, ENTITY, OR ORGANIZATION THAT YOU REPRESENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF YOURSELF OR THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT. 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.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
NEXT Trucking helps to connect Carriers and Shippers for the purpose of shipping cargo by providing the Site and the Mobile App platform (collectively, the “Platform”) whereby Carriers can post details of desired carrying requests and get matched for the loads per his/her preferences or choose the loads from the available loads that Shippers submit. NEXT Trucking also offers a fleet management system that allows small trucking companies to manage their drivers, equipment, dispatching loads and managing invoices online. The fleet management system is FREE of charge. NEXT Trucking also offers a free walkie-talkie function to drivers to communicate with our customer service and communicate with each other. “User” means any user of the Service, and may be a Carrier or a Shipper. To the extent you are a Carrier, the provisions in this Agreement regarding Carriers and the separate Carrier Broker Transportation Agreement both apply to you. To the extent you are a Shipper, the provisions in this Agreement regarding Shippers and the separate Shipper Broker Transportation Agreement both apply to you. To the extent you are a User, the provisions in this Agreement regarding Users apply to you. For the avoidance of doubt, NEXT Trucking provides the Platform for load posting and accepting carrying requirements as a broker and not as a carrier, and does not guarantee the service provided by a carrier.
Shipper shall tender shipments and get connected with the Carrier that meets the requirement(s) for the shipment (“Shipment”) through the Service. Shipper shall not contact or contract with Carrier directly or separate from the Service. Without limitation, Shipper will provide origin and destination addresses, the requested date and pickup time of the Shipment, an accurate description of the items being shipped (including weight and cargo value) and any other relevant information about the Shipment including pickup time and delivery time. Hazardous Material shipments will not be accepted at any time. NEXT Trucking is not responsible for any Shipment/Carrying terms. Once Shipper submits a tender, the load information is then posted to the Carrier’s mobile app and web app chronologically. Specific loads will show up in NEXT Trucking’s personalized recommended load section according to individual driver’s preferences and algorithms per historical behavior data. Shippers may cancel a Shipment at any time prior to it being accepted by a Carrier. Once accepted by a Carrier, NEXT Trucking will notify the Shipper that the Shipment has been accepted. If a shipment that has been accepted by a Carrier is canceled for any reason, the applicable TONU (Truck Order Not Used) fee shall be paid by the Shipper. This fee shall apply unless the Shipper and the Carrier have entered into a separate agreement in writing that waives or eliminates such charge. Each Shipper and Carrier is responsible for providing their own contact information to NEXT Trucking for use with the Service. NEXT Trucking does not guarantee that a Shipment will be accepted by a Carrier. If a Shipment is not accepted by a Carrier and there are no other Carriers to select, then NEXT Trucking will notify the Shipper that no Carrier is available for the Shipment as posted.
Completing the Shipment
Shipper will fill out the shipping information online or upload the tender list or API/EDI tender information to the NEXT Trucking Platform or submit the tender information through the account management team, which information will be used by the Platform to generate a Bill of Lading (“BOL”) for both Shippers and Carriers to use. Each shipment must have a Bill of Lading. The Bill of Lading must contain, at minimum, the names and addresses of the Carrier and the Shipper, the origin and destination addresses, the requested pickup and delivery dates and times, an accurate description of the cargo being shipped (including weight), cargo value, and other relevant terms and conditions. Carrier will obtain a signature from Shipper at the pickup location and an authorized recipient at delivery location. Carrier will then upload the signed BOL to the Platform, which will then generate a Proof of Delivery (“POD”) (The POD is a complete BOL, with signatures). Both Shipper and Carrier can download the BOL and POD from the Platform for records. Shipper can choose to hand its own BOL to Carrier at pickup location or send BOL to NEXT Trucking Customer Service if Carrier chooses not to use NEXT Trucking’s system generated BOL. Carriers and Shippers will direct any questions or concerns regarding the BOL to NEXT Trucking. Routing instructions, if provided, are for informational purposes only.
In order to use the Platform, Carriers must enter into a Broker Carrier Transportation Agreement with NEXT Trucking, and must provide to NEXT Trucking:
- A copy of the Carrier’s operating authority issued by the Federal Motor Carrier Safety Administration (DOT#);
- A completed W-9 form; and
- A U.S. Department of Transportation Safety Rating certification form.
Prior to moving your first Shipment with NEXT Trucking, Carrier must provide certificate(s) of insurance with adequate Cargo Liability and Automobile Liability, as follows:
- General Liability insurance in the amount of $750,000 or greater;
- Motor Vehicle (including hired and non-owned vehicles) $1,000,000, ($5,000,000 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances);
- Cargo Liability in the minimum amount of $100,000 or greater, with no commodity restrictions or sub-limits; and
- Workers’ Compensation insurance or its equivalent, as required by law.
All insurance policies must be issued from companies maintaining a rating of B+ or higher. Carriers will list NEXT Trucking as a certificate holder, provide certificates of insurance and, upon request, provide copies of all policies and endorsements. Carrier shall ensure that NEXT Trucking is provided notice of cancellation or modification of any insurance required under this agreement at least 30 days in advance of any cancellation or modification of the required insurance.
You must maintain the above insurance coverages and remain in good standing with your insurance provider in order to provide carrier services under this Agreement. You agree to indemnify and defend NEXT Trucking for any failure to maintain the above insurance or to properly notify NEXT Trucking of such failure.
By conducting business with Next Trucking, Carriers are agreeing that they are in compliance with all local, state, and federal laws and regulations that relate to transportation.
For each Shipment, Shipper will pay NEXT Trucking the fees stated when the applicable Shipment is accepted for posting on the Service (“Shipment Fee”). Fees are inclusive of all fuel costs and charges. Shipper is also obligated to pay any applicable accessorial fees (“Accessorial Fees”), such as potential wait charges, provided on the Service, which are incorporated herein by reference. Carrier standby time is 2 hours free at origin and destination; Shipper may incur charges and Carrier may be reimbursed for any additional standby time beyond 2 hours. NEXT Trucking may change pricing, including the Accessorial Fees, for the Service (from time to time in its sole discretion) by updating the Site and Mobile App and without any additional notice to you.
If you are a Shipper and you have provided a valid credit card, YOU HEREBY AUTHORIZE NEXT Trucking TO BILL YOUR CREDIT CARD FOR THE SHIPMENT FEE IMMEDIATELY or otherwise within the terms agreed upon AFTER COMPLETION OF THE SHIPMENT (upon uploading of the POD) AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. If you are a Shipper and you have provided NEXT Trucking with your bank account information instead of a credit card, YOU HEREBY AUTHORIZE NEXT Trucking TO PROCESS A CHECK FROM YOUR BANK ACCOUNT FOR THE SHIPMENT FEE IMMEDIATELY AFTER COMPLETION OF THE SHIPMENT (upon uploading of the POD) or otherwise within the terms agreed upon AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. To do this, your check is converted into an electronic check and presented immediately via the Automated Clearing House (“ACH”) system. In the event a check is subsequently returned for non-sufficient funds, you agree that we may add a reasonable returned check fee to the amount of the returned check and take any action available to us at law or in equity to collect such full amount. YOU AGREE TO PAY THE RETURNED CHECK FEE, THE INITIAL AMOUNT AND ANY COLLECTION CHARGES INCURRED BY US.
In the event of a dispute, NEXT Trucking may issue you with a provisional credit until the dispute is resolved. If NEXT Trucking issues a provisional credit and the dispute is resolved and the charges were correct, NEXT Trucking shall recharge your bank account to reverse this provisional credit. You expressly consent to this reversal if you falsely or incorrectly dispute a charge. Notification of a disputed charge must be sent by mail to NEXT Trucking at 2700 E Imperial Hwy, Lynwood, CA 90262, or may be made via telephone call to 213.568.0388. In the event that NEXT Trucking charges any convenience fee for making a payment via a credit card or electronic check, these fees will be stated at the time of payment before you finalize your charge. In the event of an unauthorized charge using a credit card or electronic check, please consult your bank’s rules regarding refunds and reversals.
NEXT Trucking complies with all legal requirements of your state’s applicable laws regarding providing refunds for unauthorized charges. When you make a charge, NEXT Trucking shall display a completed charge screen. This is your electronic receipt. You should print or save this electronic receipt for your records. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), CHECKS, OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to our third party payment processor or us must be accurate, current and complete. You agree to immediately notify NEXT Trucking of any change in your billing address or the credit card or bank account used for payment hereunder.
For each Shipment, NEXT Trucking will pay Carrier the fees listed to Carrier when Carrier accepted the Shipment (“Carrier Fee”). Carrier agrees that it is entitled to the Carrier Fee only after completion of the Shipment, which shall be payable to Carrier fifteen (15) days after NEXT Trucking’s receipt of the POD in accordance with this Agreement. NEXT Trucking will remit the Carrier Fees to Carrier on a weekly basis. Notwithstanding the foregoing, if the authorized recipient indicates on the POD or otherwise that the Shipment has shortages, or has been damaged, lost, delayed, not completed or otherwise files a claim regarding the Shipment and Shipper notifies NEXT Trucking of this within 24 hours after the Shipment (but in no case longer than nine (9) months after completion of the Shipment), NEXT Trucking shall have the right to withhold payment of any Carrier Fee due to the Carrier until such problem with the Shipment or claim has been settled.
Shippers agree to use the Platform to pay for any Shipments booked through the Platform and not to circumvent payments for scheduled or completed Shipments in any way. All payments will be in US dollars. You agree that you are responsible for the collection and/or payment of all taxes, which you may be liable for in any jurisdiction arising from your use of the Platform to obtain Services. NEXT Trucking is not responsible for collecting, reporting, paying, or remitting to you any such taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes, which may be levied in respect of a transaction contemplated by this Agreement. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event that NEXT Trucking is unable to bill Shippers due to insufficient funds, Shipper shall be liable for all costs and expenses incurred by NEXT Trucking in connection with collection of the Shipper Fee, including costs and expenses of a third party collection agency. Shipment Fees are non-refundable.
Shippers are given a 2-hour grace period to load or unload the Carrier’s truck once the driver arrives to pick up and deliver the freight. If the Carrier waits longer than 2 hours, then the Shipper will incur fees in accordance with the Accessorial Fees for any time that a Carrier waits at origin and destination beyond the initial 2 hours. Carrier will get paid an hourly detention fee in accordance with the Accessorial Fees.
Cash Advance – Carriers may request a cash advance from NEXT Trucking to be issued at NEXT Trucking’s discretion as a partial settlement to the agreed upon rate. All cash advances will be deducted from final settlement, including a reasonable transaction fee via ACH. If Carrier requests for money code, an additional service fee will apply for each individual advance. Promotions may occur for free fuel advance and are subject to the discretion of Next Trucking.
Quickpay – Carrier may request Quickpay from NEXT Trucking to be paid within 72 hours upon delivery and submission of a clear and accurate POD. A reasonable ACH transaction fee will apply for each circumstance. If Carrier requests for money code instead of ACH, an additional service fee will apply for each request. Promotions may occur at the discretion of Next Trucking.
No-Fee Quickpay – NEXT Trucking offers a no-fee Quickpay option for Carriers. Under the no-fee Quickpay option, if Carrier accepts, books, and completes the load all within the NEXT Trucking App (meaning the booking of the load, uploading of the POD, and submitting of the invoice), NEXT Trucking will use commercially reasonably efforts to deliver payment to Carrier within three (3) business days of the submission of the invoice. The business day ends at 3:00 p.m. Pacific time. This means that NEXT Trucking will take all commercially reasonable steps so that payment for invoices submitted before 3:00 p.m. on a business day will be delivered within three (3) business days. Invoices submitted after 3:00 p.m. on a weekend or on a Holiday will be considered submitted as of the next business day, and payment will be delivered within three (3) business days from that date. Invoices that include Accessorial Fees are subject to review and approval by the Shipper and NEXT Trucking. In these instances, the Carrier will receive payment within three (3) business days of the submission of the approved invoice subject to the time and dates variations listed above.
In order to use certain features of the Service through the Platform, you must register for an account with NEXT Trucking (“Account”) and provide certain information as prompted by the registration form. Shippers must provide a valid credit card and billing address or ACH information. If Shipper requests payment term, a credit application is required. Carriers must provide valid license and insurance information. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Service. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. Each Account may only be used to access the Service during one (1) concurrent login session. You agree to immediately notify NEXT Trucking of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. NEXT Trucking cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Subject to the terms of this Agreement, NEXT Trucking grants you a non-transferable, nonexclusive license to use the Platform for your business use during the term of this Agreement. You may not permit any other person or entity to use your account for the Platform.
Subject to the terms of this Agreement, NEXT Trucking grants you a nontransferable, non-exclusive license to install and use the Mobile App, in executable object code format only, solely on your own handheld mobile device and for your business use during the term of this Agreement. You may not permit any other person or entity to use your account for the Mobile App.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform; (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 service, website, or Mobile App; and (d) except as expressly stated herein, no part of the Site or Mobile App may be copied, reproduced, distributed, republished, downloaded, displayed, 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 the terms of this Agreement. All copyright and other proprietary notices on any Platform content must be retained on all copies thereof.
Users may contact NEXT Trucking’s technical support center for any support related issues arising from the use of the Platform by following the instructions on the Platform.
You acknowledge and agree that the availability of the Mobile App is dependent on the third party from which you received the Mobile App (“App Store”), e.g., the Apple App Store or Google Play. You acknowledge that this Agreement is between you and NEXT Trucking and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Platform are owned by NEXT Trucking or NEXT Trucking’s licensors. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. NEXT Trucking and its suppliers reserve all rights not granted in this Agreement.
NEXT Trucking reserves the right, at any time, to modify, suspend, or discontinue the Platform or any part thereof with or without notice. You agree that NEXT Trucking will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
If you provide NEXT Trucking any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Platform or Services (“Feedback”), you hereby assign to NEXT Trucking all rights in the Feedback and agree that NEXT Trucking shall have the right to use such Feedback and related information in any manner it deems appropriate. NEXT Trucking will treat any Feedback you provide to NEXT Trucking as non-confidential and non-proprietary. You agree that you will not submit to NEXT Trucking 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 NEXT Trucking may use your name in connection with such Feedback.
“User Content” means any and all information, data, and other content that a User submits to, or uses with, the Platform or the Services. User Content includes the information provided in a Shipment request or acceptance. 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 NEXT Trucking. Because you alone are responsible for your User Content (and not NEXT Trucking), you may be exposed to liability if, for example, your User Content violates the Acceptable Use Policy. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content.
You hereby grant, and you represent and warrant that you have the right to grant, to NEXT Trucking an irrevocable, nonexclusive, royalty-free and fully paid, sub-license-able, worldwide license, to use your User Content, solely for the purposes of including your User Content in the Platform and to create Anonymous Data. All rights in and to the User Content not expressly granted to NEXT Trucking in this Agreement are reserved by you.
Creation of Anonymous Data
We 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 makes the data identifiable to you. We may use and disclose Anonymous Data for any purpose, including improving the Platform.
We may share your User Content: (a) with our third party service providers; (b) if another company acquires our company, business, or our assets, including through bankruptcy, with such acquiring company; (c) to comply with relevant laws, to respond to subpoenas or warrants served on us; (d) to protect or defend our or our User’s rights or property; and (e) to investigate or assist in preventing any violation or potential violation of the law or this Agreement.
ACCEPTABLE USE POLICY
The following sets forth NEXT Trucking’s “Acceptable Use Policy:”
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.
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 enjoyment 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.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
VIP DRIVER PROGRAM
NEXT Trucking offers a VIP Driver (“VIP Driver”) program to eligible owner-operator Carriers who have registered for an Account with NEXT Trucking and have satisfied the requirements necessary to participate in the program. To qualify as a VIP Driver and to participate in the program, you must complete a minimum of four Shipments or earn a minimum of $5,000 in revenue from Shipments within any given calendar month. For purposes of this Section 8, a “Shipment” is defined as cargo tendered for shipment by a shipper through the Mobile App. For a Shipment to qualify for the program requirements, you must complete all of the following using the Platform: (a) accept and agree to transport a Shipment; (b) complete the Shipment; (c) generate and upload a POD; and (c) create and submit an invoice for the Shipment.
Upon qualifying as a VIP Driver for the program, you are eligible to redeem the exclusive rewards immediately. You will continue to remain a VIP Driver as long as you achieve four Shipments or earn a minimum of $5,000 in revenue from Shipments during each calendar month. If you qualify as a VIP Driver for a calendar month and then fail to achieve the minimum requirements to be a VIP Driver in the following calendar month, you will remain a VIP Driver through the last day of the following calendar month (i.e., the first calendar month in which you did not achieve the minimum requirements to maintain your VIP Driver status). You can qualify as a VIP Driver again in future calendar months by achieving the minimum requirements to be a VIP Driver.
As a VIP Driver, you will be entitled to receive exclusive rewards (“Rewards”) through the program. The Rewards are: (a) the use and enjoyment of an electronic logging device (“ELD”) provided by Geotab, Inc.; and (b) eligibility to receive 50% fuel advances from NEXT Trucking without incurring standard transaction fees. Please see nexttrucking.com/vip-driver/terms/ for complete VIP Driver program details and Terms and Conditions. By accessing and using the Service, you accept and agree to be bound by the VIP Driver program Terms and Conditions.
TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Service. NEXT Trucking may at any time terminate this Agreement with you in its sole discretion if: (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) NEXT Trucking is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) NEXT Trucking has elected to discontinue the Service as described in Section 6.2; or (d) for your poor performance as a Shipper or Carrier in our sole discretion. Upon termination of this Agreement, your Account and right to access and use the Platform will terminate immediately. NEXT Trucking will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. EVEN AFTER THIS AGREEMENT IS TERMINATED, THE PROVISIONS OF THIS AGREEMENT REGARDING INDEMNITY, CONFIDENTIALITY, DISCLAIMERS AND RELEASE, LIMITATIONS OF LIABILITY, AND DISPUTE RESOLUTION, SHALL CONTINUE TO BIND SHIPPERS AND CARRIERS.
You agree to defend, indemnify and hold NEXT Trucking (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (a) use of the Services, the Platform and the Rewards, (b) User Content, (c) interaction with any other User, (d) violation of this Agreement; (e) violation of applicable laws or regulations; or (f) your shipment contents (if you are a Shipper) or your shipment services (if you are a Carrier). NEXT Trucking reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of NEXT Trucking. NEXT Trucking will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
DISCLAIMERS AND RELEASE
THE SERVICE AND USE OF THE PLATFORM AND REWARDS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR 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 NONINFRINGEMENT. WE (AND OUR 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. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
NEXT TRUCKING OFFERS THE PLATFORM TO CONNECT SHIPPERS AND CARRIERS, BUT DOES NOT AND DOES NOT INTEND TO ACT IN ANY WAY AS A CARRIER, COURIER, FREIGHT FORWARDER, SHIPPING PROVIDER OR BROKER. IT IS UP TO THE THIRD PARTY CARRIER TO PROVIDE SHIPPING SERVICES, WHICH MAY BE SCHEDULED THROUGH THE USE OF THE PLATFORM. NEXT TRUCKING HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO SHIPPERS BY SUCH THIRD PARTY CARRIERS. NEXT TRUCKING SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF CARRIER OR SHIPPER FOR ANY REASON. CARRIERS SHALL NOT BE DEEMED TO BE A SUBCONTRACTOR, AGENT OR EMPLOYEE OF NEXT TRUCKING FOR ANY REASON.
NEXT TRUCK CAUTIONS THAT DRIVING WHILE USING PHONES IS DANGEROUS AND AGAINST THE LAW. IF CARRIERS USE THE MOBILE APP WHILE DRIVING, THEY DO SO AT THEIR OWN RISK, AND NEXT TRUCKING IS NOT IN ANY WAY RESPONSIBLE FOR SUCH IMPROPER USE.
NEXT TRUCKING DOES NOT INDEPENDENTLY ASSESS THE SUITABILITY, LEGALITY, REGULATORY COMPLIANCE, QUALITY OR ABILITY OF ANY CARRIERS, SHIPPERS, CARGO AND SHIPPING SERVICES SCHEDULED THROUGH THE USE OF THE PLATFORM, AND WE MAKE NO WARRANTY REGARDING THE FOREGOING. BY USING THE SERVICE, YOU OR YOUR SHIPMENTS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE. YOU USE THE SERVICE AT YOUR OWN RISK. YOUR INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN YOU AND SUCH USER OR THIRD PARTY. USERS AGREE THAT NEXT TRUCKING WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN ANY USERS OR THIRD PARTIES, NEXT TRUCKING IS UNDER NO OBLIGATION TO BECOME INVOLVED.
YOU HEREBY WAIVE AND RELEASE NEXT TRUCKING (AND OUR 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 YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) 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 THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE PLATFORM, THIS AGREEMENT, THE REWARDS OR THE SERVICES (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 YOU HAVE PAID NEXT TRUCKING IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
THIRD PARTY SITES AND ADVERTISEMENTS
The Platform may contain links to third party websites, services, and advertisements (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of NEXT Trucking and NEXT Trucking is not responsible for any Third Party Sites & Ads. NEXT Trucking 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.
NEXT Trucking respects the intellectual property of others and asks that Users of our Platform and Services do the same. In connection with the Platform, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our Users is, through the use of the Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (a) your physical or electronic signature; (b) identification of the copyrighted work(s) that you claim to have been infringed; (c) identification of the material on our services that you claim is infringing and that you request us to remove; (d) sufficient information to permit us to locate such material; (e) your address, telephone number, and e-mail address; (f) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (g) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
APPLE APP STORE ADDITIONAL TERMS AND CONDITIONS
The additional terms and conditions in this apply to Users using a Mobile App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 15, the more restrictive or conflicting terms and conditions in this Section 15 apply, but solely with respect to Mobile Apps from the Apple App Store.
NEXT Trucking and you acknowledge that this Agreement is between NEXT Trucking and you only, and not with Apple, and that NEXT Trucking, not Apple, is solely responsible for the Mobile App and the content thereof. To the extent this Agreement provides for usage rules for the Mobile App that are less restrictive than the Usage Rules set forth for the Mobile App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
Scope of License
The license granted to you for the Mobile App is limited to a nontransferable license to use the Mobile App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
Maintenance and Support
NEXT Trucking is solely responsible for providing any maintenance and support services with respect to the Mobile App, as specified in this Agreement (if any), or as required under applicable law. Company and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.
NEXT Trucking is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Mobile App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be NEXT Trucking’s sole responsibility.
NEXT Trucking and you acknowledge that NEXT Trucking, not Apple, is responsible for addressing any claims of you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including, but not limited to: (a) product liability claims; (b) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. This Agreement does not limit Company’s liability to you beyond what is permitted by applicable law.
Intellectual Property Rights
NEXT Trucking and you acknowledge that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, as between NEXT Trucking and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address
NEXT Trucking’s contact information for any end-user questions, complaints or claims with respect to the Mobile App is set forth in Section 16.12.
Third Party Terms of Agreement
You must comply with applicable third party terms of agreement when using the Mobile App.
Third Party Beneficiary
NEXT Trucking and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Changes to Terms of Service
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by providing an option to accept the new terms before your next use or sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the Service. Any changes to this Agreement will be effective upon the earlier of: (a) the date you accept the new terms; (b) thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable); or (c) thirty (30) calendar days following our posting of notice of the changes on the Service. These changes will be effective immediately for new Users of the Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Platform and Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Dispute Resolution – PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and NEXT Trucking and our employees, agents, successors, or assigns, regarding or relating to these the Service or this Agreement, shall exclusively be litigated through binding and confidential arbitration. For all dispute inquiries, please contact customer service at email@example.com.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving transportation related contract disputes from the American Arbitration Association (“AAA”) or the Transportation ADR Council (Administered through the Transportation Lawyers Association)(“ADR”) . As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or ADR’s rules for transportation related arbitration.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN PROCEDURES AND RULES APPLICABLE IN COURT. Arbitrator decisions are BINDING and are as enforceable as any court order or Judgment, and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of the provisions prohibiting arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the provisions prohibiting arbitration on a class or collective basis are found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California.
Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted on the Platform, and shall not be effective as to any claim of which you provided us with written notice prior to the date of termination.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on ADR, it’s Rules and Procedures, and how to file an arbitration claim, you may or visit the ADR website at https://www.translaw.org/Pages/ADR-Information.aspx.
Choice of Law
Any and all controversies, disputes, demands, counts, claims, or causes of action between you and NEXT Trucking and our employees, agents, successors, or assigns, regarding or relating to the Platform, the Services, the Rewards or this Agreement, shall exclusively be governed by the laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event that qualifies as an act of God under California law.
This Agreement constitutes the entire agreement between you and us regarding the use of the Platform and the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
Prohibition on Assignment
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without NEXT Trucking’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees..
Permission to Identify
You hereby grant NEXT Trucking permission to identify you as a customer of NEXT Trucking or user of our Platform and Services and to reproduce your name and logo on the Site and in any other marketing materials.
If there is any conflict or inconsistency between the terms and conditions set forth in this Agreement and the terms set forth in any Bill of Lading, Proof of Delivery, or any other shipping form, the terms and conditions of this Agreement shall control over such terms.
Copyright © 2015, NEXT Trucking, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party, which may own the Marks.
NEXT Trucking is located at 2383 Utah Ave Ste 108 El Segundo, CA 90245. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
The communications between you and NEXT Trucking use electronic means, whether you use the Platform or send us emails, or whether NEXT Trucking posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from NEXT Trucking in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that NEXT Trucking provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.