PLEASE READ THE FOLLOWING USER AGREEMENT CAREFULLY BEFORE USING OUR WEBSITE AND/OR SERVICE.
You agree to and understand the following in its entirety:
The legal entity You are entering into this User Agreement with is e-railspot, Inc., a Delaware Corporation, located at PO Box 969, Austin, TX, 78767.
Payment processing services for Shippers and Service Providers on the e-railspot software platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this User Agreement, You agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of e-railspot enabling payment processing services through Stripe, You agree to provide e-railspot with accurate and complete information about You and Your business, and you authorize e-railspot to share it and transaction information related to Your use of the payment processing services provided by Stripe.
e-railspot does not guarantee any pricing, delivery, logistics, or other terms of business between you and other users of e-railspot’s Services. e-railspot does not provide any comprehensive guarantees regarding use of its Services, and our Services are not a substitute for thoughtfulness and awareness when engaging in business with other users. We at e-railspot are not responsible for any losses, damages, or injuries that may result from your choice to engage in, or business you transact with another user of our Services. If you do not agree with the foregoing, please do not use our Services.
e-railspot discourages You against providing anyone with access to your login credentials to your user account. However, if You do give someone your username and password, or if You fail to adequately safeguard such information, You are responsible for any and all transactions the person performs while using your account, even if those transactions are fraudulent or You did not intend or want them performed.
You acknowledge that telephone calls to or from e-railspot may be monitored and recorded for the purposes of quality assurance, training, and other purposes. You verify that any contact information provided to e-railspot, its agents and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You agree you will not engage in spoofing or any other false identification, whether by telephone, text (SMS), email, or other means. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or remove your account. If your telephone number changes ownership, you may notify e-railspot by replying STOP to any text message sent to the retiring phone number or by contacting e-railspot Member Support.
1. License and Acceptable Use.
The e-railspot Services contain copyrighted material, inventions, know-how, potential patentable business method material, design logos, phrases, names, logos or applications, and code ("Intellectual Property Content") all of which, unless otherwise indicated and/or provided pursuant to a third party license, are our sole property and we retain all appurtenant rights, interests, and title thereto. We also claim ownership rights under the copyright and trademark laws with regard to the "look", "feel", "appearance", and "graphic function" of our Services including, but not limited to, its color combinations, sounds, layouts, and designs. You agree and acknowledge that your use of the e-railspot Services does not confer upon You any license or permission to use our (or any third party's) Intellectual Property Content. You shall not reproduce, reverse engineer, modify, display, sell, or distribute the Intellectual Property Content, or use it in any other way for public or commercial purpose. All other trademarks, service marks, and copyrights are held by their rightful owners. e-railspot grants to you a non-exclusive, non-transferable (except as permitted below), worldwide limited license to make use of the e-railspot Services. This license does not include any resale of e-railspot Services, or its contents. You may not collect and/or use any shipment listings, descriptions, or prices for any reason. You may not engage in: any derivative use of any e-railspot Service or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to You in this User Agreement are reserved and retained by e-railspot or its licensors, suppliers, users, rightsholders, or other content providers. No e-railspot Service, nor any part of any e-railspot Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of e-railspot. You may not misuse the e-railspot Services. You may use the e-railspot Services only as permitted by law.
Shipper. A person or company that arranges to have goods shipped on their own behalf by any type of conveyance (“Shipper”). The Shipper might be the consignee (recipient of the shipment) or the consignor (sender of the shipment), or a third party that is neither. On e-railspot, Shippers may be referred to as the “Shipping Customer” or “Customer” or “Booking Party”.
Transportation Service Provider (TSP). Any party, person, agent, or Carrier that provides freight (or passenger) transportation and related services to a Shipper or agency. For the transportation of goods, this includes Carriers, Brokers, freight forwarders, and third-party logistics providers. On e-railspot, Transportation Service Providers may be referred to as “Service Providers”.
Carrier. A person or company who provides transportation of goods (or passengers) for compensation.
Broker. A person who, for compensation, arranges, or offers to arrange, the transportation of goods by an authorized motor carrier. Motor carriers, or persons who are employees or bona fide agents of Carriers, are not Brokers within the meaning of this definition when they arrange or offer to arrange the transportation of shipments that they are authorized to transport and they have accepted and legally bound themselves to transport.
3. e-railspot is a Neutral Venue and Digital Clearinghouse. e-railspot is not a Transportation Service Provider or Shipper. Our website acts as a venue where Shippers and TSPs can interact and enter into agreements. e-railspot is not a party to any shipping agreement made between e-railspot users via the e-railspot software platform. As a result, we have no control over the quality, safety, or legal aspects of the transactions that take place on our website. e-railspot does not prequalify or validate the claims or qualifications of TSPs, nor does e-railspot prequalify or validate the claims of Brokers including those related to compliance with the Moving Ahead for Progress in the 21st Century Act (MAP-21). e-railspot does not endorse, recommend, or refer any specific TSP or Shipper, nor does e-railspot have any control or influence over actions or decisions made by users of the Service. All users of the e-railspot software platform make their own decisions and You acknowledge and agree that we are not in any way arranging transportation or shipping or logistics services on your behalf. Because we are not involved in the actual transaction between Shippers and TSPs, we have no control over the accuracy of listings, the ability of TSPs to transport items, or the ability of Shippers to send items. We cannot ensure the Shipper or TSP will actually complete a shipment. We cannot and do not guarantee the ability of users to complete or fulfill any services booked through the e-railspot software platform. Furthermore, due to the difficulty of individual authentication, especially on the Internet, we cannot and do not guarantee the verification of any user’s identity. Any identity verification methods we employ are strictly on a best efforts basis and should not be solely relied upon by our users. You acknowledge and agree that any and all communications, correspondence, verbal or written or by electronic means, or any warranties or representations made with regard to the arrangement of transportation services are not provided by us and are specifically and solely between You and the other user.
4. Access to Site and Services. You agree that You can form legally binding contracts under applicable law. Our Services are not available to temporarily or indefinitely suspended e-railspot users. You acknowledge that You are at least 18 years of age and you have reached the age of majority in the state or jurisdiction where You live or reside. If You are not yet 18 years old or have not reached the age of majority in the state or jurisdiction in which You live or reside, You may not use our Services. Your e-railspot account may not be transferred or sold to another party. If You are registering as a business entity, you represent that You have the authority to bind the entity to this agreement. If You are using our Services as a Broker, you agree that you possess the authority to act as a Broker on behalf of a Shipper or TSP. Users who engage in the transportation of goods must have a valid license to operate the vehicle they intend to use. You agree that the e-railspot Services are for transportation services only and that work that You provide will only involve transportation services. You agree that You will not use your participation in the e-railspot website as a means to sell or market any types of goods or products, unless specifically allowed by e-railspot in writing.
5. Shippers. You are responsible for reading all terms, conditions, and tariffs published by TSPs when booking shipments on e-railspot. You are agreeing to the TSP’s terms, conditions, and tariffs, and entering into a legally binding agreement with the TSP, unless the transaction is prohibited by law or by this User Agreement. You acknowledge that, unless otherwise noted by the TSP, pickup dates, delivery dates, and transit times are estimates only and are not guaranteed. Cancellations may be requested by either party prior to services being rendered (see Section 11 for additional details). A TSP reserves the right to inspect your shipment before accepting it, and to refuse to transport any item prohibited by this User Agreement or by law. IMPORTANT: e-railspot does not actively screen or qualify TSPs for compliance with federal, state or local laws and regulations, including, but not limited to, Broker compliance with the Moving Ahead for Progress in the 21st Century Act (MAP-21). It is recommended that You confirm such compliance directly with the TSP before services are rendered by the TSP.
6. Transportation Service Providers. You must legally be able to transport the shipments You engage with through e-railspot. You agree that it is your sole obligation to comply with all laws, rules, statutes, and regulations that may apply including any and all local, state, and federal licensing requirements. TSPs agree that, through the various products and features on e-railspot, they are solely responsible for all aspects of services, pricing, and terms they offer the Shipper. Rates, services, and terms are solely provided by the TSPs and not by e-railspot. e-railspot does not verify or adhere to the terms put forth by the TSP, which are available on the TSP’s public profile. These TSP terms may not directly violate e-railspot’s User Agreement. You understand and acknowledge that all shipment information is provided by other registered users and e-railspot has no control over or responsibility for the accuracy of this information. You are responsible for reading all of the shipment details, and by booking shipments on e-railspot, you are entering into a legally binding agreement to complete the services as requested by the Shipper.
7. Payments. Shippers may be given one or more payment options at the time of booking with a TSP. As a part of the e-railspot service, some users can make online payments to one another. e-railspot Payments is not an escrow service and each individual user is solely in control of payments made through e-railspot. In other cases, partial payment in the form of a deposit can be made through e-railspot with the remaining balance to be paid directly to the TSP. Some users may be enrolled in Payment on Terms which allows for invoicing. e-railspot has no control over the payments between users or the release of funds.
a) Full Pre-funded Payment: The Shipper pre-funds their e-railspot account with the total shipping price. In some cases, the Shipper is presented with a payment code (to be shared with the TSP upon completion of a shipment), and in some cases the payment is automatically released according to the agreed upon terms.
For shipments with a payment code, when delivery is completed, the Customer can release payment from their account by marking the shipment as “Delivered” or giving the payment code directly to the TSP, which is the equivalent of making a non-reversible cash payment. TSPs can only ask for the payment code after the load is delivered when being paid through e-railspot Payments (exception: shipments of live animals may require payment at pickup). The Shipper agrees that they will release the payment to the TSP upon delivery of the shipment regardless of damages, delays, or any other service level issue that might have occurred during transit. e-railspot will make commercially reasonable efforts to ensure proper disbursement of funds among Shippers and TSPs; however e-railspot shall have no liability or be otherwise indebted to the TSP if the Shipper fails to satisfy the condition of payment, nor will e-railspot be liable to the Shipper for any damages, missing items, or other service level issues that occurred during the shipping process. In consideration for the costs and resources incurred by e-railspot in keeping the account open and undertaking such efforts, the Shipper and the TSP hereby acknowledge and agree that e-railspot shall charge a dormancy fee on a monthly basis of 12.5%, commencing 120 days following the deposit of the payment due to TSP with e-railspot (the “Dormancy Fees”). In no event, shall the aggregate Dormancy Fees exceed the amount of the payment due to TSP. If, 365 days after the date of booking, commercially reasonable efforts do not result in the disbursement of funds, any remaining funds associated with the transaction(s) in question shall be deemed forfeited and shall become property of e-railspot for failure by the Shipper to satisfy the condition of releasing the payment code or term of this User Agreement. If a Shipper refuses to release the payment, e-railspot cannot release payment without the Shipper’s consent under any circumstance and the right to payment by the TSP shall then be conditioned on the Shipper’s consent. It is the responsibility of both the TSP and Shipper to resolve all monetary disputes, damage claims, breach of contract claims, etc. outside of e-railspot. The Shipper and TSP acknowledge and agree that e-railspot shall not have any obligations or liability to the TSP unless e-railspot fails to fulfill its explicit obligations hereunder.
The foregoing shall not apply to Less-than-Truckload (“LTL”) shipments where the TSP and Shipper have contracted for completion of a shipment to occur 120 days after booking; where the Carrier fails to provide a Bill of Lading (“BOL”) to Shipper so that Shipper is unable to meet its payment obligation to the Service Provider; or on any rate adjustments that occur 120 days after booking.
For pre-funded shipments without a payment code, You authorize e-railspot to release payment in accordance with the TSP’s payment terms. The funds are made available for withdrawal by the TSP’s e-railspot account when the payment is released or the code is submitted.
b) e-railspot Booking Deposit: Shippers pay a Shipper's service charge (see Section 9.a.2) and a deposit in the amount of the TSP’s transaction fee (see Section 9.a.3) to the TSP through e-railspot.
This deposit is credited to the TSP’s e-railspot account. The deposit amount is then deducted from the booked shipping price and the Shipper pays the remaining balance directly to the TSP at the agreed upon time. The service charge and deposit are non-refundable in the event of a completed shipment.
c) Payment on Terms: Certain Shippers may be invited to enroll in Payment on Terms. Enrollment in Payment on Terms allows Shippers to pay for their shipment at a pre-specified duration after delivery. You will be invoiced based on the schedule specified in the Payment on Terms agreement You sign, where You will have the opportunity to review and dispute any discrepancies. Payment by the agreed upon method will be due in accordance with Your written payment terms, unless disputed. If disputed, once the dispute is resolved, payment will be due within 24 hours. The Shipper agrees that damages, delays, or any other service level issue that might have occurred during transit is not considered a dispute within the meaning of this Section 7(c).
By booking a shipment while enrolled in Payment on Terms, You agree that the rate is based on the information you’ve provided. Your invoice may be adjusted if the shipment is materially different than what you’ve disclosed for reasons including, but not limited to, excessive weight, inaccurate dimensions, different commodity class (“Class”), more items than listed, omission of essential pickup and/or final destination details, etc. You also agree to the Carrier’s terms and conditions. In the event of an overpayment, we will credit your e-railspot account for the difference. This credit is non-refundable and can be used towards any future shipment.
e-railspot reserves the right to charge a late fee based on your signed Payment on Terms agreement.
Shippers enrolled in Payment on Terms agree to allow e-railspot to disclose trade data and accounts receivable files to a third-party Business and Corporation Credit Provider.
d) Chargebacks and Reversed Payments: In the event that a Shipper successfully charges back a credit or debit card payment or reverses any other payment type, then e-railspot will reverse the payment within the Shipper and TSP accounts and the shipment would then be treated as unpaid.
Unwarranted chargebacks or payment reversals initiated by e-railspot users are prohibited, will result in the suspension of your e-railspot account, and may result in e-railspot pursuing any and all options at its disposal to collect the withdrawn funds including, but not limited to, sending your unpaid account to a third-party collection agency. In the event that shipping services were not performed, all users must abide by the e-railspot cancellation policy described in Section 11 below. The e-railspot cancellation process ensures the integrity of the feedback system and accuracy of any refund.
There are situations where a chargeback may be warranted, such as when a user feels that their card or payment method has been charged fraudulently. Prior to any chargeback initiation, e-railspot must be notified by the cardholder so that e-railspot may investigate the claim to determine if a chargeback is appropriate. A chargeback may not be filed as a replacement, or an addition to, a cancellation of a e-railspot transaction.
If an unwarranted chargeback of the Shipper’s payment is initiated and accepted by the payment processor or other entity, e-railspot reserves the right to charge the TSP for any costs associated with the chargeback. If a chargeback is accepted, the TSP becomes responsible for that invoiceable amount.
8. Pricing and Price Changes. e-railspot does not set or control prices offered by Shippers or TSPs. Quotes and offers Shippers receive from TSPs are required to be all-inclusive based on the information Shippers provide; however, if the actual shipment characteristics are materially different than specified by the Shipper and result in changes such as but not limited to equipment required, space required, accessorial services required, all duties, customs assessments, governmental penalties and fines, taxes, and legal costs allocable to shipments, then TSPs may invoice a different amount than the original quote, and the Booking Party shall be responsible for all additional costs incurred.
For the LTL Published Rate format only, fuel surcharges shown at the time of booking are those that are in effect at the time of booking and are subject to change depending on the fuel surcharge rate effective on the actual pickup date. In the event the shipper does not list Class, then the density of the shipment will be calculated and converted to the appropriate Class based on the conversion chart below, which is based on the National Motor Freight Classification Guide. Transit time will not affect the final invoice price unless specifically stated in the TSP’s rules tariff. Transit times are not guaranteed by e-railspot. If the dimensions and/or weight of the shipment vary from the original quote, the TSP may charge additional amounts above the quoted price and the Booking Party shall be responsible for all additional costs incurred. TSPs may require the use of additional equipment and/or services to complete delivery of a shipment, in such cases, the TSP may invoice the Shipper to reflect the additional transportation costs and the Booking Party shall be responsible for payment of all additional charges. Shippers will be notified of any price changes or new fees that are requested through e-railspot and e-railspot will charge the Shipper’s payment method on file within 48 hours. In the event that a shipment is re-rated and the resulting amount due is less than the amount initially quoted and paid through e-railspot Payments, a e-railspot account credit equal to the difference between the amount initially paid and the adjusted invoice amount will be applied to the Shipper’s e-railspot account. Credits may be applied toward booking any other shipment within one year of the date of issuance, otherwise they will expire. Shippers should contact Member Support regarding refund requests, questions or concerns about their e-railspot account credits.
COMMODITY CLASSIFICATION STANDARDS BOARD DENSITY GUIDELINES
Minimum Average Density (in pounds per cubic foot)
Less than 1
9. Fees. You are solely responsible for all transactions conducted through your account and for paying all fees incurred by any users of your account as well as all applicable taxes. Some features on e-railspot require a payment method to be on file with e-railspot. You authorize e-railspot to charge any applicable fees to the payment method(s) You provide to us. e-railspot reserves the right to waive or change our fees, penalties, or interest at any time. We may temporarily change or suspend our fees as a promotion and such changes are effective for the promotional period indicated in writing by e-railspot.
10. Authorization to Credit and Debit Accounts. As a Shipper or TSP, You irrevocably and expressly authorize e-railspot to credit any monies to the account that You have identified for e-railspot. You agree that it is your responsibility to maintain a valid credit card or bank account on file with us while engaging in activity with the e-railspot Services. You agree that if You do not maintain a valid credit card or bank account on file with us during any billing attempt, You may be subject to interest and penalties per Section 9.d.3. You expressly authorize e-railspot to withhold any monies and/or debit any monies from any account that You have identified to e-railspot for any chargebacks, fees, costs, deductions, adjustments, and any other amounts owed to e-railspot. We reserve our rights to all actions and remedies in connection with any monies owed to e-railspot.
11. Match Cancellations and Account Credits. A cancellation may be requested by either party after a shipment is booked on e-railspot but before any services are performed. Cancellations should only be requested after reasonable attempts have been made to reach an agreeable solution and it is certain that the services that were booked on e-railspot will not be performed. When You request a cancellation, the other party will be notified and will have the opportunity to respond by either:
If your request for cancellation is accepted by the other party, the match will be cancelled and the shipment can either be relisted or deleted. If your cancellation request is disputed by the other member, then the request will be sent to e-railspot and a determination will be made on allowing or not allowing the cancellation. If the other party does not respond, the cancellation and reason will be automatically accepted.
a) Refunds and Credits. For all cancelled shipments booked using the Booking Deposit payment method, the Shipper deposit and/or the Shipper Service Charge will be collected by e-railspot as our cancellation fee. At e-railspot's sole discretion, and on a case-by-case basis, we may offer the cancellation fee as a discount to a future transaction; provided, however, that in such cases (i) the right to such discount shall be conditioned, and may be given in consideration for the Shipper consummating a future transaction with e-railspot within 365 days following the issuance of such credit, and (ii) such discount shall have no cash value and shall not be transferable. A Shipper may receive a full refund of the booked shipment price and Shipper Service Charge for cancelled e-railspot Payments transactions up to 120 days after the booking date. A refund can only be given if the e-railspot Payments payment code has not been released to the TSP.
b) Excessive Cancellations. Every TSP is allowed 1 cancellation for every 10 booked shipments without penalty, with your total booked shipments always rounded up to the nearest 10. Each cancellation above this allowance is considered to be excessive, and TSPs that have excessive cancellations at the time a bid is placed or an offer is accepted will have a variable surcharge added to their transaction fee. The cancellation rate is equal to the total number of cancellations divided by the total number of matches. The TSP’s transaction fee will incur an excess cancellation surcharge (see section 9.d.1) based on the TSP’s previous 12-month cancellation rate on e-railspot. If a Brokered Load is automatically cancelled because the Shipper to Broker transaction has been cancelled, the cancellation will not be posted on the Carrier’s profile or count as an excessive cancellation.
12. Mobile Application Usage. When using the Services on a mobile device and/or the e-railspot mobile application, you shall: (i) observe all traffic laws and otherwise drive safely; (ii) use your good personal judgment while driving, (iii) not interact with the app, unless your vehicle is stationary and legally parked; (iv) not use the Services for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes.
e-railspot does not warrant that the mobile application will be compatible or interoperable with your mobile device or any other piece of hardware, software, or equipment. Furthermore, you acknowledge that compatibility and interpretability problems can cause the performance of your mobile device to diminish or fail completely and may result in permanent damage to your mobile device, and corruption of the software of and files located on your mobile device, and e-railspot shall have no liability should these problems arise. You assume all responsibility and risk for the use of the e-railspot Services and mobile applications.
You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct application for your device. e-railspot is not liable if you do not have a compatible mobile device or if you download the wrong version of the application for your mobile device. e-railspot reserves the right to terminate the Service and the use of the application should you be using the Service or application with an incompatible or unauthorized device. You will comply with all applicable laws from your home nation, the country, state, and/or city in which you are present while using the application or Service.
13. Bills of Lading. For certain shipments and for the convenience of the parties to a shipment, e-railspot generates an electronic and/or printable bill of lading utilizing the booking information provided by both parties for your use in tendering the shipment. The bill of lading issued in connection with each shipment is non-negotiable and shall be deemed, conclusively, to have been prepared by You, the Shipper. The parties agree that e-railspot does not issue the bill of lading and that e-railspot is not a party to the bill of lading. For certain TSPs, a failure by the Shipper to provide the bill of lading generated via e-railspot to the selected TSP may result in the loss of the quoted rate. If the Shipper makes changes to a shipment after booking, then the Shipper is required to either make changes to the bill of lading or cancel the shipment and rebook with current information. TSPs shall have no obligation to honor rate quotes in any of the following instances: any alteration of the bill of lading, or tendering of shipments to any Carrier other than the selected TSP, or the use of a bill of lading not generated via the e-railspot software platform.
14. Carrier Cargo Claims and Carrier Limitations of Liability. As a neutral venue, e-railspot does not set terms specific to Carrier cargo liability. Except where otherwise provided by the Carrier via the e-railspot software platform, the Carrier liability for any cargo damage, loss, or theft from any cause shall be determined under the presiding, applicable law. All cargo claims should be submitted immediately by the Shipper to the selected TSP to help ensure timely resolution, and e-railspot shall have no liability or responsibility for same. The Shipper may not offset freight or other charges against claims for any loss, damage, misdelivery, or non-delivery. Where provided by the Carrier through e-railspot, the liability for cargo loss offered will be determined by the individual Carrier’s governing General Rules Tariff or terms and conditions in effect at the time of shipment. If a shipment contains freight with a predetermined exception value, as determined by the selected Carrier, the maximum exception liability will override the otherwise standard liability for cargo loss. The maximum amount that a Shipper may recover on a cargo claim will be that which is recoverable under the Carrier’s published liability limits and/or tariffs. The Shipper agrees that by booking a shipment on e-railspot they have been afforded a choice of reasonable liability rates for the protection of all freight shipped, and voluntarily chosen the released rates and limits published by Carriers through the e-railspot software platform.
15. Cargo Insurance. On certain shipments, Shippers may have the option to purchase the Cargo Insurance. e-railspot has no responsibility, liability, or involvement in the issue of insurance, the denial of insurance, or in the processing or payment of claims.
16. Information You Submit. You solely are responsible for any information You provide to us or other users in the registration, shipping, transportation process, or any other use of our Services. Your personal information and any shipment listings must be true, legal, accurate, and non-fraudulent. You authorize e-railspot to use the information You supply to us in connection with our Services and in accordance with this Agreement. You acknowledge and agree that our Services act as a passive conduit for any and all communication and/or distribution of information and such communication and/or distribution does not constitute a sale of information. We have no control, editorial or otherwise, over any communication, information, and specifically, over the content of such communication or information. We do not and will not ensure the accuracy or reliability of such communication or information, nor will we act as a monitor over the content of such communication or information. However, we do reserve the absolute right to remove or restrict any communication or information that You may post to the e-railspot Services that is in the sole opinion of e-railspot a violation of this Agreement, illegal, discriminatory, threatening, or lewd. You assume legal responsibility for all damages incurred as a result of any of your online communication or distribution of information.
Furthermore, You expressly represent and warrant the following: (1) You are the owner, with all appurtenant rights thereto, of any and all communication, content and/or information that You post on the e-railspot Services, or; (2) You are the legitimate and rightful grantee of a worldwide, royalty free, perpetual, irrevocable, sub-licensable, non-exclusive license to use, distribute, reproduce and distribute such communication, content, and/or information. To only that extent to allow us to use your communication, content, and/or information and not violate your rights in the same, You grant to us a royalty free, transferable, worldwide, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise the copyright, publicity, and database rights that You have in your communication, content, and/or information. You further represent and warrant that any and all of your online communication, content, and/or information will not, in the sole opinion of e-railspot:
a) e-railspot User Moderation. The e-railspot Services are self-policed by e-railspot users via a flagging system that is used to communicate the policies of the e-railspot User Agreement and Flagging Policies. A registered user who receives a red flag on three separate occasions is subject to suspension of their account. e-railspot reserves the right to edit, amend, or delete any information posted on the e-railspot Services if, in the sole opinion of e-railspot, it is in violation of any policy or the Community Rules and Guidelines.
b) Information Posted Publicly. Unless otherwise indicated, shipping transaction activity on e-railspot is intended to be made public, and You are authorizing e-railspot to use or repurpose this information within the scope of the e-railspot Services and this Agreement, including in a user identifiable manner. In order to maintain the safety, security and integrity of the e-railspot Service, You may not provide contact information to other users prior to booking and never on any public area of the site.
d) Some portions of the e-railspot platform implement Google Maps or PTV Group mapping services, including Google Maps and PTV Group API(s). Your use of Google Maps is subject to Google’s Terms of Service. Your use of PTV Group mapping services is subject to PTV Group’s Terms of Service.
17. Prohibited Activities. e-railspot may suspend or remove your account if we suspect that You have engaged in prohibited activities in connection with our Services. e-railspot reserves the right, but is not obligated, to edit, amend, or delete any prohibited or malicious content that users submit on our Services. Users may not manipulate or attempt to manipulate other users’ e-railspot accounts. Other prohibited activities include, but are not limited to:
18. Right to Suspend or Remove Users. We reserve the absolute right to reject or suspend your participation, or remove You from your current participation, with the e-railspot Services at any time and for any reason or for no reason and without notice to You. We are not liable for any damage or loss resulting from such hold, suspension, or removal. Events and scenarios that may result in the suspension or removal of your participation include but are not limited to: flagging; abusive or hostile behavior; unresolved disputes; creating and/or maintaining multiple accounts or relation to other accounts; committing fraud or violating this User Agreement; and, poor performance on the site (high cancellations, negative feedback, etc.). e-railspot has no obligation to disclose the reason for actions taken under this section. All decisions are final.
19. Feedback. For each e-railspot transaction, the Shipper and TSP are allowed to rate each other by leaving feedback for one another. TSPs leave feedback directly through e-railspot whereas Shippers leave feedback through third-party platform Yotpo. You agree Your use of Yotpo is subject to the Yotpo Terms of Service. Feedback should be left only after a shipment has been delivered or a cancellation has been completed. Feedback for TSPs consists of the Shipper leaving a star rating (with a 1-star rating being the lowest and a 5-star rating being the highest), writing a short comment about their experience with the TSP, and indicating if they would or would not work with the TSP again for future shipments. Feedback for Shippers consists of the TSP leaving a rating (positive, negative, or neutral) and writing a short comment about their experience with the Shipper. You acknowledge that your feedback consists of comments left by other e-railspot users and a composite feedback score compiled by e-railspot. You agree that You will not use your e-railspot feedback in any venue other than e-railspot. Users should always use caution and good judgment when leaving feedback for another user because You could be held legally responsible for damages to a user’s reputation if a court were to find that the remarks constitute libel or defamation. Under federal law (the Communications Decency Act), because e-railspot does not censor feedback or investigate it for accuracy, e-railspot is not legally responsible for the remarks that users post, even if those remarks are defamatory. However, this law does not protect the person who leaves the feedback from responsibility for it.
a) Feedback Calculations for TSPs. Feedback scores for TSPs are calculated after completion of a shipment when a Shipper opts to answer the question "Would you use this transporter again?" The Shipper can select thumbs up(yes, +1) or thumbs down(no, -1). The “Would Use Again” percentage reflects the number of thumbs up (+1) or thumbs down (-1) ratings received by a TSP. Star ratings are calculated when a Shipper rates a TSP’s services between 1 and 5 stars (with 1-star rating being the lowest and a 5-star rating being the highest) after either completion or cancellation of a shipment.
b) Feedback Calculations for Shippers. Feedback scores for Shippers are calculated when a TSP gives a Shipper a positive (+1), neutral (0), or negative (-1) score. A Shipper’s overall feedback score is the difference between the number of TSPs who left a positive rating and the number of TSPs who left a negative rating. A TSP can only influence a Shipper’s feedback score by one positive, one negative, or one neutral rating. When a TSP leaves more than one of a particular type of feedback for a Shipper, for example three positive ratings for three different transactions, the Shipper’s score only increases by +1. While the score is only increased by +1, each of the feedback comments left by the TSP are made available for the community to read in the Feedback Received section of a Shipper’s profile. Likewise, if a TSP leaves three positive ratings and two negative ratings, only one of the positives and one of the negatives will count towards a Shipper’s feedback score, resulting in a net score of zero.
c) Resolving Feedback Disputes.
To maintain the integrity of the feedback system, feedback left for a user is a permanent part of that user’s profile. Feedback comments cannot be edited at a later date. Users should resolve any misunderstandings prior to leaving feedback, as most misunderstandings can and are resolved quickly through direct communication. There may be times when You are unhappy with, disagree with, or regret feedback that You left for another user, or that may have been left for You. If You have a disagreement over feedback that has been left, You have the following options to respond:
20. Dispute Resolution. Disputes between You and e-railspot regarding our Services should be reported to e-railspot Support and are otherwise governed by Section 35 of this User Agreement. We will attempt to resolve any disputes between you and another user through customer support protocols. Because we are a neutral venue, however, we are not responsible for successfully resolving any disputes, nor are we responsible for any decisions made or actions taken in a reasonable effort to assist in the resolution of a dispute involving You. If You report a dispute to e-railspot, we will make reasonable efforts to help both parties communicate; however, all disputes must be resolved directly between You and the other party. Therefore, if we are contacted by a user who claims to have a dispute with You regarding transactions completed on e-railspot and they request your contact information (including, but not limited to, any of your provided phone numbers and/or contact information) to settle the dispute, You expressly authorize us to release your provided contact information to the e-railspot user and You agree to release us from any and all liability associated therewith. We encourage You to report all user-to-user disputes to law enforcement officials, or a certified mediation or arbitration entity. When appropriate, we also encourage you to report disputes involving fraud, theft, or other criminal activity to the appropriate law enforcement agencies.
21. Prohibited and Restricted Items. You may not list any shipment on our site that violates any applicable law, statute, ordinance, regulation, or includes prohibited items. Prohibited items are defined as hazardous or dangerous goods that may pose a danger to health, safety, or property while being transported (such as explosives, radioactive materials, flammable gases and solids, and toxic substances). Hazardous goods that cannot be shipped through the mail or commercial carrier are not allowed on e-railspot. The few hazardous materials that lawfully may be transported under certain conditions (if they are properly packaged and labeled) may be listed on e-railspot - provided that the listing contains a clear notice of the hazardous nature of the material and a description of the planned method of shipping that complies with the law. For details on particular hazardous substances and transportation requirements in the US, see the U.S. Postal Service Publication 52. For details on particular hazardous substances and transportation requirements outside of the U.S., please consult your local postal authority and/or regulatory agency. Restricted Items are defined as items considered restricted or perishable by the U.S. Postal Service which generally do not pose a danger to health, safety, or property while being transported, but their transport is regulated or banned for public policy reasons. Generally, restricted or perishable items that can lawfully be transported by mail or commercial carrier are permitted on e-railspot (see U.S. Postal Service Publication 52 for additional details). Full responsibility rests with the consigner to comply with all postal and non-postal laws and regulations that relate to the mailing of hazardous, restricted, and perishable material. Anyone who sends, or causes to be sent, a non-mailable or improperly packaged hazardous material can be subject to legal penalties (i.e. fines and/or imprisonment), including, but not limited to, those specified in 18 U.S.C.
22. (U.S. Only) Household Goods Shipments. Federal Motor Carrier Safety Administration (FMCSA), part of the U.S. Department of Transportation, administers laws and regulations for the protection of Shippers of household goods. Your TSP is required by the FMCSA to provide You with certain information pertaining to a household goods move. You can determine the FMCSA registration and safety status of your TSP at www.fmcsa.dot.gov and review the FMCSA regulations for household goods moves as well as other helpful information at ProtectYourMove.gov.
23. (U.S. Only) Non-household Goods Shipments. The Federal Motor Carrier Safety Administration, part of the U.S. Department of Transportation, requires that all TSPs handling interstate shipments register with it and provide certain information. You can determine the registration and safety statutes of your TSP at www.fmcsa.dot.gov. Certain transportation services may involve movements only within one state. A number of states have statutes and regulations pertaining to such intrastate transportation. We suggest You check with your state Department of Transportation if your service is entirely within one state.
24. No Agency. You hereby agree and acknowledge that your execution of this Agreement, your provision of services and/or your use of the e-railspot Services, does not confer or imply any contractor (independent or otherwise), agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship with us and furthermore that no affiliation, association, or connection exists between You and e-railspot.
25. Release. Should you have a dispute with one or more e-railspot users, You release e-railspot, Inc., its officers, directors, agents, advisors, attorneys, accountants, and employees from all claims, demands, and damages (actual and consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes and/or this User Agreement.
26. Confidentiality/Non-Disclosure. As a result of the performance of this Agreement and whether due to any intentional or negligent act or omission, we may disclose to You or You may otherwise learn of, or discover, our documents, business practices, object code, source code, management styles, day-to-day business operations, capabilities, systems, current and future strategies, marketing information, financial information, software, technologies, processes, procedures, methods and applications, or other aspects of our business ("Our Information"). You hereby agree and acknowledge that any and all of Our Information is confidential and shall be our sole and exclusive intellectual property and proprietary information. You agree to use Our Information only for the specific purposes as allowed by the performance of this Agreement. Any disclosure of Our Information to a third party specifically including a direct competitor is strictly prohibited. All obligations contained in this Section 26 shall survive the termination of this Agreement. Furthermore, You acknowledge that Our Information is proprietary, confidential, and extremely valuable to us, and that we would be materially damaged by your disclosure of Our Information. You acknowledge and agree that monetary damages provide an insufficient remedy for the breach of this confidentiality obligation, and that we shall be entitled to injunctive relief in addition to recovery for damages.
27. Taxes. You are solely responsible for any and all taxes, levies, charges, and fees incurred or that may be payable to any taxing authority in connection with the transactions hereunder, other than any income tax incurred by e-railspot.
28. Record Keeping/Audit. e-railspot reserves the right to keep all records of any and all transactions and communications between You and other users for administration purposes in accordance with all applicable laws and regulations. All records will be kept in accordance with applicable privacy laws and regulations.
29. Non-solicitation. During the term of this Agreement You shall not solicit to hire nor hire our employees of whom You become aware of through the performance of this Agreement. Furthermore, You shall not otherwise interfere with any of e-railspot’s other business relationships including, but not limited to, those with other e-railspot users, vendors, or business associates. Specifically, You shall not knowingly, directly or indirectly, solicit or attempt to solicit, divert, and/or send marketing content to any e-railspot user in which you initially met through e-railspot.
30. Unsolicited Idea Submission. We always want to receive messages and feedback from e-railspot users and welcome any comments regarding the e-railspot marketplace. However, e-railspot policy does not allow us to accept or consider ideas, suggestions, or proposals other than those we specifically request. The intent of this policy is to avoid the possibility of future misunderstandings when new functionality and features developed internally by e-railspot might be similar or even identical to your idea.
If You do send e-railspot an unsolicited suggestion, idea, or proposal, or if You send, at the request of e-railspot, a comment or suggestion to improve the e-railspot Marketplace (for example, through discussion boards or via email) (collectively, the "Submission"), e-railspot will consider the Submission to be non-confidential and non-proprietary. e-railspot shall have no obligations concerning the Submission, contractual or otherwise (including, but not limited to, an obligation to keep the Submission confidential), and shall not be liable for any use or disclosure of any Submission. e-railspot shall be entitled to unrestricted use of the Submission for any purpose whatsoever, commercial or otherwise, without compensation to you.
31. Remedies. If You use our Services in violation of this agreement, we are authorized to take action against you as a user and/or take action against your e-railspot account which may include, but is not limited to, the immediate removal of your shipment listing(s), offers, bids, and/or profile, notifying our users of your actions, issuing a warning, temporarily suspending your user status, terminating your user status, and/or refusing to provide our Services to You in the future.
32. Limited Liability and No Warranty. You acknowledge that we cannot guarantee the continuous operation of or access to our sites, Services, or tools including those of third-party solution providers. You further acknowledge that operation of and access to our sites, Services, or tools including those of third-party solution providers may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that e-railspot is not responsible for any failures, delays, outages, or otherwise not making the Services available at any time. You agree that You are making use of our sites, Services, and tools including those of third-party solution providers at your own risk, and that they are being provided to You on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, warranties of title, and fitness for a particular purpose.
In addition, to the extent permitted by applicable law, we are not liable, and You agree not to hold e-railspot responsible, for any damages or losses resulting in any way from the foregoing in this Section 32, or the following:
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to You. In such jurisdictions, it is the intent of the parties to this User Agreement to make clear that e-railspot’s liability is extremely limited and provides its services “AS IS”, and if this User Agreement is modified by any Court of competent jurisdiction to conform to local law, such modification shall be conducted while preserving the original intent of the parties as closely as possible.
33. Indemnity. You agree to indemnify and hold e-railspot and our officers, directors, agents, advisors, attorneys, accountants, and employees harmless from any claim or demand, including the cost of your attorneys' fees, made by any third party due to or arising out of your negligence, breach of this Agreement, misuse of e-railspot’s Services, or violation of any law or the rights of a third party.
34. Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the e-railspot Services and your listing, shipping, transporting, and solicitation of offers to ship and transport items.
35. Arbitration and Waiver of Class Actions. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT IS AN AGREEMENT TO ARBITRATE DISPUTES (“ARBITRATION AGREEMENT”) AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. YOU UNDERSTAND AND AGREE THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, BUT BY ENTERING INTO THIS AGREEMENT CHOOSE TO HAVE ANY DISPUTE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION, INCLUDING YOUR RIGHT TO APPEAL. In consideration for our willingness to provide you with access to our sites, Services, or tools, you and we agree as follows: Any legal claim arising out of or relating to this Agreement or our Services (excluding legal action taken by e-railspot to collect our fees or recover damages for, or obtain an injunction relating to, the e-railspot operations, intellectual property, or Our Information), shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, including, if necessary, the Optional Rules for Emergency Measures of Protection. The arbitration shall be conducted in Austin, Texas, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 35 MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR USER. YOU HEREBY WAIVE YOUR RIGHT TO COMMENCE OR PARTICIPATE IN ANY SUCH COLLECTIVE OR REPRESENTATIVE PROCEEDING.
36. Trademark and Domain Name Protection. The e-railspot Services contain trademarks, trade names, trade dress, service marks, domain names, and other indicia of ownership (collectively the "Marks") owned or licensed for use by e-railspot. Unless otherwise agreed to in an Addendum to this Agreement, You agree that no right, property, license, permission, or interest of any kind in or to the Marks is or is intended to be given or transferred to or acquired by You pursuant to the execution, performance or non-performance of this Agreement or any part thereof. You shall in no way contest or deny the validity of, our right of title to or license of use for, the Marks, and You shall not encourage or assist others directly or indirectly to do so, during the lifetime of this Agreement and thereafter. You shall not utilize the Marks in any manner that would diminish their value or harm their reputation. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the e-railspot Services without express written consent. You may not use any meta tags or any other "hidden text" utilizing e-railspot’s name or trademarks without the express written consent of e-railspot. You shall not use or register any domain name that is identical to or similar to any of the Marks. To the greatest extent possible, e-railspot’s rights in our Marks and Our Information shall be enforceable and respected worldwide.
38. Security. e-railspot uses industry standard practices to safeguard your personal information, including firewalls and Secure Socket Layers (SSL). We utilize several different security techniques to protect data from unauthorized access, but we cannot guarantee the security of our system. We also do not guarantee uninterrupted or secure access to our system, as the operation of our Services can be interrupted by numerous factors outside of our control.
39. Governing Law. THIS AGREEMENT AND YOUR USE OF THE SERVICES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
40. Other Terms and Conditions. You acknowledge and agree that we have the sole discretion to set forth and post additional terms and conditions for your use of the e-railspot Services at any time. You agree that any additional terms and conditions that apply to your use of our Services shall be considered an effective amendment to this Agreement and said terms and conditions shall be incorporated herein. Furthermore, You expressly agree that, if there is any conflict between those additional terms and conditions and the specific terms and conditions set forth herein, the terms and conditions set forth in those additional terms shall govern.
41. General. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole, and any such provision should be enforced by authorities and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys' fees and costs will be awarded to the prevailing party in the event of litigation or arbitration involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import.
42. Notices. All notices sent to e-railspot shall be sent by physical mail to: e-railspot, Inc., PO Box 969, Austin, TX, 78767 or via email to: firstname.lastname@example.org. All notices will be sent to You using the contact information you provide, and may be sent via regular mail, e-mail, text, phone call, or fax.
43. Drafting. Grable Martin Fulton PLLC has served as counsel to e-railspot in the preparation of this Agreement which includes the terms as agreed by the parties. Nothing in this User Agreement shall be construed in favor of or against e-railspot by virtue of its role in drafting this User Agreement. Users are encouraged to read this document in its entirety and consult with independent legal counsel regarding questions.
Last Revised Date: January 19, 2023