Last Updated: 8 October 2018
Welcome, and thank you for your interest in Project44 Inc. (“Project44,” “we,” or “us”) and our mobile application for Drivers and the associated service (collectively, the “App“). These Terms of Service are a legally binding contract between you and Project44 regarding your use of the App.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 14, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PROJECT44 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (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. (See Section 14.)
- Accounts and Registration. You will be, or have been, invited to download the App. That invitation will include a unique Equipment identifier (an “Equipment ID“). After you have downloaded the mobile app, you will be able to associate the Equipment ID with your instance of the App.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Project44 grants you, solely for your individual, commercial use in connection with the delivery of Equipment corresponding to the issued Equipment IDs, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use one object code copy of the App obtained from a legitimate marketplace on a mobile device that you own or control.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the App; (b) make modifications to the App; or (c) interfere with or circumvent any feature of the App, including any security or access control mechanism. If you are prohibited under applicable law from using the App, you may not use it.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the App (“Feedback”), then you hereby grant Project44 an unrestricted, perpetual, sublicensable, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the App and create other products and services.
- Ownership; Proprietary Rights. The App is owned and operated by Project44. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the App (“Materials”) provided by Project44 are protected by intellectual property and other laws. All Materials included in the App or made available through the App are the property of Project44 or its third party licensors. Except as expressly authorized by Project44, you may not make use of the Materials. Project44 reserves all rights to the Materials not granted expressly in these Terms.
- User Content
- User Content Generally. Certain features of the App may permit users (including you) to upload content to the App, including photos, video, images data, text, and other types of works (“User Content“) and to publish User Content. You retain any copyright and other proprietary rights that you may hold in the User Content that you post or submit through the App.
- Limited License Grant to Project44. By providing User Content to or via the App, you grant Project44 a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
- Limited License Grant to Other Users. By providing User Content to or via the App, you grant those other users of our products and services, a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the App, and our products and services.
- User Content Representations and Warranties. Project44 disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the App. By providing User Content via the App, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Project44 and users of the App and our products and services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Project44, the App, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Project44 to violate any law or regulation; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Project44 may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the App you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Project44 with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Project44 does not permit copyright-infringing activities on the App.
- Prohibited Conduct. BY USING THE APP YOU AGREE NOT TO:
- use the App for any illegal purpose or in violation of any local, state, national, or international law;
- harass, threaten, demean, embarrass, or otherwise harm any other user of the App;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the App, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the App except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the App or any user’s enjoyment of the App, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the App; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the App;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other App account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
- Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the App, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
222 W. Merchandise Mart Plaza, Suite 1744, Chicago, IL 60654
- Any notice alleging that materials hosted by or distributed through the App infringe intellectual property rights must comply include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the App;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the App of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Project44 will promptly terminate the accounts of users that are determined by Project44 to be repeat infringers.
- Modification of these Terms. We reserve the right to change these Terms on a going-forward basis. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the App. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 9, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Term, Termination and Modification of the App
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the App, and ending when terminated as described in Section 10.2.
- Termination. If you violate any provision of these Terms, your authorization to access the App and these Terms automatically terminate. In addition, Project44 may, at its sole discretion, terminate these Terms or your account, or suspend or terminate your access to the App, at any time for any reason or no reason, with or without notice.
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the App; (b) you will no longer be authorized to access your account or the App; (c) you must pay Project44 any unpaid amount that was due prior to termination; and (d) Sections 4.3, 5, 6, 10.3, 11, 12, 13, 14 and 15 will survive.
- Modification of the App. Project44 reserves the right to modify or discontinue the App at any time (including by limiting or discontinuing certain features of the App), temporarily or permanently, without notice to you. Project44 will have no liability for any change to the App or any suspension or termination of your access to or use of the App.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the App, and you will defend and indemnify Project44 and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Project44 Entities”) from and against every claim brought by a third party (including Carriers and Shippers), and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the App; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including a Shipper or Carrier. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
- Disclaimers; No Warranties
THE APP AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE APP ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PROJECT 44 DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE APP AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE APP, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PROJECT44 DOES NOT WARRANT THAT THE APP OR ANY PORTION OF THE APP, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE APP, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PROJECT44 DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE APP OR PROJECT44 ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE APP WILL CREATE ANY WARRANTY REGARDING ANY OF THE PROJECT44 ENTITIES OR THE APP THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE APP AND YOUR DEALING WITH ANY OTHER USER OR ANY SHIPPER OR CARRIER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE APP AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE APP) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PROJECT 44 does not disclaim any warranty or other right that PROJECT 44 is prohibited from disclaiming under applicable law.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PROJECT44 ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE APP OR ANY MATERIALS OR CONTENT ON THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROJECT44 ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 14.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PROJECT44 ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE APP OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Project44 in the most expedient and cost effective manner, and except as described in Section 14.2, you and Project44 agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Project44 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 14.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Project44 will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA“) under its Consumer Arbitration Rules (collectively, “AAA Rules“) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Project44. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration“). Project44’s address for Notice is: Project44 Inc., 222 W. Merchandise Mart Plaza, Suite 1744, Chicago, IL 60654. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Project44 may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Project44 must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Project44 in settlement of the dispute prior to the award, Project44 will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, Project44 will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Cook County, IL, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Project44 for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND Project44 AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Project44 agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Project44 makes any future change to this arbitration provision, other than a change to Project44’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Project44’s address for Notice of Arbitration, in which case your account with Project44 will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 14.6 is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.2 will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of Illinois without regard to conflict of law principles. You and Project44 submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Cook County, IL for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the App from our offices in Illinois, and we make no representation that Materials included in or made available through the App are appropriate or available for use in other locations.
- Additional Terms. Your use of the App is subject to all additional terms, policies, rules, or guidelines applicable to the App or certain features of the App that we may post on or link to from the App (the “Additional Terms“). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Contact Information. The App is offered by Project44 Inc. located at 222 W. Merchandise Mart Plaza, Suite 1744, Chicago, IL 60654You may contact us by sending correspondence to that address or by emailing us at email@example.com. You can access a copy of these Terms by clicking here: [TOS link]
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the App or to receive further information regarding use of the App.
- No Support. We are under no obligation to provide support for the App. In instances where we may offer support, the support will be subject to published policies.
- International Use. The App is intended for visitors located within the United States. We make no representation that the App is appropriate or available for use outside of the United States. Access to the App from countries or territories or by individuals where such access is illegal is prohibited.
- Notice Regarding Apple. This Section 16 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Project44 only, not with Apple Inc. (“Apple“), and Apple is not responsible for the App or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the App. If the App fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App and/or your possession and use of the App infringes a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the App. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.