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SMARTHOP TERMS OF SERVICE AGREEMENT

Effective: December 10, 2020

SmartHop, Inc. (“SmartHop”) owns and operates the SmartHop proprietary software platform (the “Platform”) that assists in the identification, booking, tracking and management of freight loads (each, a “Load”), and provides related operational, administrative and support services to independent owner-operators and small-mid size carriers to manage Loads booked through the Platform and related trucking operations, as further described on our services and offerings page available here https://www.smarthop.co/terms-of-services (collectively, the “Services”). This terms of service agreement (the “Agreement”) sets forth the legally binding terms and conditions governing the access and use of the Platform, Services, Content, Load Data (as each term is defined in Sections 5.1), and any related services provided by SmartHop in connection with the use of any of the foregoing (collectively, the “SmartHop Service”)

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY SUBMITTING AN ORDER WITH SMARTHOP’S DISPATCHERS TO BOOK A LOAD (A “TRANSACTION”), REGISTERING AN ACCOUNT TO ACCESS AND/OR USE THE SMARTHOP SERVICE (AN “ACCOUNT”) AND/OR OTHERWISE ACCESSING AND/OR UTILIZING THE SMARTHOP SERVICE (OR ANY PART THEREOF): (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY OR PERSON IDENTIFIED ON THE ACCOUNT AND IN RESPECT OF WHOM THE SMARTHOP SERVICE WAS ORDERED AND/OR THE TRANSACTION WAS PLACED (SUCH ENTITY OR PERSON, “CUSTOMER”), AND TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT, AND (3) YOU AGREE THAT THE CUSTOMER IS ENTERING INTO THIS AGREEMENT WITH SMARTHOP, INC.

IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT, DO NOT CREATE AN ACCOUNT, SUBMIT AN ORDER TO BOOK A TRANSACTION, OR OTHERWISE ACCESS AND/OR USE THE SMARTHOP SERVICE OR ANY PART THEREOF.

1. THE SMARTHOP SERVICE

1.1. Additional Terms. The use of certain services and/or products made available by SmartHop in connection with the SmartHop Service may be subject to separate terms and conditions or other operating rules, policies and procedures in addition to those in this Agreement (the “Additional Terms”), and Customer’s and its Authorized Users’ use of such services and/or products shall be subject to the applicable Additional Terms. The Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict with this Agreement and the Additional Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.

1.2. Accounts. Customer agrees to provide and maintain up to date information that is true, accurate, current, and complete. Customer agrees that Customer will not (i) create an Account using a false identity or fictitious name or information, and/or (ii) create an Account or use the SmartHop Service if Customer has been previously removed or banned by SmartHop from use of the SmartHop Service, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s and its Authorized User’s passwords for the Account. Customer is solely responsible for any activity originating from its Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify SmartHop immediately of any unauthorized use of its Account. SmartHop reserves the right to limit the number of Accounts that can be created from any one (1) computer or mobile device and the number of computer or mobile devices that can access an individual Account. “Authorized Users” means Customer’s employees, contractors, and/or agents of Customer, including, without limitation, drivers of trucks and/or vehicle owned and/or operated by Customer (“Customer Vehicles”), that Customer has authorized to access and use the SmartHop Service and/or that transport Loads on behalf of Customer.    

1.3. Access to the Platform. Subject to the terms of this Agreement, SmartHop hereby grants Customer a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right during the term of this Agreement to permit Authorized Users to (i) access and use, the Platform, over the internet, and view the Content, made available through the Platform, in each case, solely for Customer’s internal business purposes and in accordance with the applicable user documentation and any applicable usage parameters and restrictions, and (ii) use the Load Data, solely for Customer’s internal business purposes to the extent necessary to carry out the applicable Transaction.

1.4. Third Party Integrations. SmartHop may, in its sole discretion, make available third party software applications, products and/or integrations (including, without limitation, data products and integrations) that are embedded, integrated, or otherwise accessible through the Platform, or for use in connection with the SmartHop Service (all of the foregoing, collectively, “Third Party Integrations”). Third Party Integrations are expressly excluded from the defined terms “Platform” and “SmartHop Service” as used throughout this Agreement. Customer’s and its Authorized Users’ use of Third Party Integrations is subject to and governed solely by the applicable third party end user terms of use or similar agreement for the applicable Third Party Integration which can be viewed at https://www.smarthop.co/third-party-integration. If Customer does not agree to abide by the applicable end user terms of use or similar agreement for the Third Party Integrations, then Customer may not access or use the Platform or the Third Party Integrations. SmartHop does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle Customer’s or any Authorized User’s data. Customer should address any questions in this regard directly to the relevant provider of the applicable Third Party Integrations. SmartHop is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s or its Authorized User’s access or use of any such Third Party Integrations, or Customer’s or any Authorized User’s reliance on the privacy practices or other policies of such Third Party Integrations.

1.5. Restrictions. Customer agrees that Customer will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (i) use the SmartHop Service (or any part thereof) or allow access to it, in a manner that circumvents contractual or functional usage restrictions or that exceeds any applicable usage parameters or restrictions; (ii) modify, adapt, translate or create derivative works based on the SmartHop Service (or any part thereof), or any related documentation; (iii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except as expressly permitted by applicable law; (iv) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the SmartHop Service (or any part thereof), or any related documentation; (v) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of SmartHop or its suppliers on or within the Platform and/or related documentation and or any deliverables provided hereunder; (vi) interfere with or disrupt the integrity or performance of the SmartHop Service (or any part thereof), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the SmartHop Service; (vii) attempt to gain unauthorized access to the Platform (or any part thereof), Content and/or Load Data, or its related systems or networks; (viii) frame or utilize framing techniques to enclose Platform, Content and/or Load Data or any portion thereof; (ix) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, Content, Load Data, or the personal information of others without SmartHop’s prior written permission or authorization; (x) use the Platform (or any part thereof) to hack, spam, or phish SmartHop or SmartHop’s other users; (xi) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; (xii) violate any contract, rules or policies that govern the use of any Third Party Integrations, as directed by the applicable provider of the Third Party Integration; or (xiii) access and/or use the SmartHop Service (or any part thereof) in violation of any applicable local, state, national or international laws, rules or regulations.

1.6. Changes and Modifications. SmartHop reserves the rights to either temporarily or permanently modify, suspend or discontinue the SmartHop Service (or any part thereof) with or without notice. Customer agrees that SmartHop will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the SmartHop Service (or any part thereof).

2. CUSTOMER RESPONSIBILITIES

2.1. Customer Assistance. Customer agrees to provide reasonable assistance and support to SmartHop in the provision of the SmartHop Service and/or performance of Services under this Agreement. Customer acknowledges and agrees that SmartHop’s ability to successfully provide the SmartHop Service and perform Services under this Agreement in a timely manner is contingent upon performance by Customer of the obligations set forth in this Agreement, and SmartHop shall have no liability for deficiencies in the performance and/or delivery of the SmartHop Service (or any part thereof) resulting from any act or omission of Customer, or any of its employees, contractors, or agents. If any Services are required to be provided on-site at a Customer’s premises, Customer shall provide safe and adequate space, power, network connections and access to applicable hardware, software and other equipment and information, and assistance from qualified personnel familiar with Customer’s hardware, software, other equipment and information, as reasonably requested by SmartHop.    

2.2. Authorized Users. Customer shall not permit any person other than Authorized Users to access and use the SmartHop Service (or any part thereof), and shall ensure that Authorized Users use the SmartHop Service solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for its Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer.         

2.3. Customer Data. Customer understands and agrees that SmartHop may collect data and information, which may include Personal Data (as defined in Section 2.4), in connection with Customer’s and/or its Authorized User’s use of the SmartHop Service (collectively, “Customer Data”). “Customer Data” does not include Load Data or Operational Metrics (as defined below in Section 5.2). Customer grants to SmartHop a non-exclusive, royalty-free, fully-paid, worldwide license to use and process Customer Data as reasonably necessary for SmartHop to provide Customer the SmartHop Service hereunder. Customer represents and warrants that it has all the rights necessary to grant SmartHop the licenses granted herein in and to Customer Data.

2.4. Personal Data. Customer acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing and/or use of any personally identifiable data and/or information through or in connection with the use of the SmartHop Service (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Customer is the data controller and SmartHop is merely a data processor and/or service provider as such terms are defined pursuant to Data Protection Laws. Personal Data provided to, or collected by, SmartHop in connection with SmartHop Service shall only be used in accordance with this Agreement and the SmartHop Privacy Policy located at https://www.smarthop.co/privacy-policy. In addition, Customer agrees, at SmartHop’s request, to execute and/or enter into any documents, agreements, statements, or policies reasonably deemed necessary or appropriate by SmartHop to comply with any Data Protection Laws with respect to any Personal Data.

2.5. Disclosures and Consents. Customer acknowledges and agrees that it, and not SmartHop, is responsible for making all appropriate disclosures and for obtaining all necessary consents from its Authorized Users and any Customer Vehicle drivers and/or passengers under Data Protections Laws and any other applicable laws and regulations that relate to the collection of data and/or information.Customer represents and warrants Personal Data that, with respect to any Personal Data collected, transmitted, hosted, stored or processed by Customer and/or its Authorized Users, or otherwise disclosed, transferred, or provided to SmartHop, in connection with Customer’s and its Authorized Users’ use of the SmartHop Service: (i) Customer is in compliance, and will comply, with all Data Protection Laws and any other applicable laws and regulations, and (ii) Customer has taken all steps necessary or required under Data Protection Laws, and any other applicable laws and regulations, to legally collect, transmit, host, store or process such Personal Data through the SmartHop Service or otherwise disclose, transfer or provide such Personal Data to SmartHop under this Agreement, including, without limitation, making all disclosures and/or providing notice to, and obtaining all permissions, consents and/or approvals from, each applicable data source (including, without limitation, Authorized Users and any Customer Vehicle drivers and/or passengers).

2.6. Transactions. SmartHop does not conduct any verification of brokers and/or shippers that Loads through the Platform. SmartHop does not represent, warrant or guarantee the broker’s and/or shipper’s identity and whether the broker and/or shipper is trustworthy. Customer understands and agrees that Customer’s and its Authorized Users’ interactions and dealings with brokers and/or shippers in connection with any Transactions, are solely between Customer and such broker and/or shipper. Customer is solely responsible and liable for, and SmartHop shall not be a party to or responsible for, any Transactions booked by or on behalf of Customer and/or any contract, terms and conditions, and/or agreements entered into between Customer and the applicable broker and/or shipper in connection with any Transaction (“Transaction Terms”). CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY PROBLEMS OR DISPUTES BETWEEN CUSTOMER AND ANY BROKER, INCLUDING, WITHOUT LIMITATION, DISPUTES RELATED TO ANY TRANSACTIONS AND/OR TRANSACTION TERMS, MUST BE RESOLVED SOLELY BETWEEN CUSTOMER AND THE APPLICABLE BROKER AND/OR SHIPPER, AND SMARTHOP IS NOT RESPONSIBLE FOR ANY LOSS, HARM OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH INTERACTIONS OR DEALINGS AND HAS NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT CUSTOMER HAS A DISPUTE WITH ONE OR MORE BROKERS AND/OR SHIPPERS, CUSTOMER HEREBY RELEASES SMARTHOP, ITS OFFICERS, EMPLOYEES, AGENTS, AND SUCCESSORS FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR TRANSACTIONS. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER SHALL AND HEREBY DOES WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

3. FEES & PAYMENT TERMS

3.1. Fees. In consideration for the Services provided by SmartHop hereunder, Customer shall pay SmartHop a fee for each Transaction equal to a percentage of the gross fees for the applicable Transaction, as set forth on SmartHop’s pricing page available at https://www.smarthop.co/pricing-dispatch-service. SmartHop may increase the amount of fees and rates payable by Customer upon thirty (30) days prior written notice to Customer.

3.2. Payment Terms. Unless otherwise agreed by the parties, SmartHop shall bill and charge Customer on a weekly basis in arrears for the fees due and payable by Customer hereunder. Unless otherwise mutually agreed in writing by the parties, Customer shall be automatically charged by SmartHop, through SmartHop’s third party payment service provider using Customer’s credit card on file, or, if Customer elects ACH payments, via ACH debit withdrawal from Customer’s bank account on file, for the fees due for the Services provided by SmartHop to Customer. Customer hereby expressly authorizes SmartHop, and/or SmartHop’s third party payment service provider (if applicable), to charge Customer for all applicable fees due by Customer hereunder using Customer’s selected payment method, and Customer will issue the required payment documentation. If SmartHop provides any on-site Services to Customer at Customer’s premises, Customer will reimburse SmartHop for all reasonable travel and other related expenses incurred by SmartHop in its performance of such on-site services that have been mutually agreed upon by the parties.

3.3. Late Fees. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, such payment shall be deemed past due. If Customer’s ACH payment is rejected by its bank or the transaction is otherwise returned by the bank, a minimum $25.00 fee will be charged to Customer by SmartHop. Payments made under this Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. In addition, SmartHop reserves the right to immediately suspend or terminate any services provided hereunder and/or Customer’s access to the Platform in the event the fees due and payable by Customer are more than thirty (30) days late. All payments shall be made in USD. All fees payable under this Agreement are non-refundable.3.

3.. Taxes. Customer acknowledges that the fees payable under this Agreement do not include duty, sales, use, shipping, excise, import, export, goods and services, value added or similar taxes or duty, including any penalties and interest thereon, or any credit card and/or ACH or bank processing fees, and all government permit and license fees and customs and similar fees, which SmartHop may incur in respect of this Agreement, including any costs expended to collect such amounts from Customer (“Taxes”), and Customer agrees to pay, indemnify and hold SmartHop harmless from all applicable Taxes (other than taxes based upon SmartHop’s net income), unless Customer procures and provides to SmartHop an exemption certificate in a form reasonably acceptable to SmartHop and to the appropriate taxing authority.

3.Audit Right. During the term of this Agreement and for one (1) year thereafter, SmartHop or its designated agent may inspect Customer’s facilities and records to verify that Customer has paid SmartHop the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement. Any such inspection will take place only during Customer’s normal business hours and upon not less than ten (10) business days’ prior written notice from SmartHop. Customer shall reasonably cooperate with such audit and shall make such personnel and records available as SmartHop may reasonably request. The audit will be conducted at SmartHop’s expense, unless the audit reveals that Customer has underpaid the amounts owed to SmartHop by more than five percent (5%) or failed in some other material respect to comply with the terms of this Agreement, in which case Customer will reimburse SmartHop for all reasonable costs and expenses incurred by SmartHop in connection with such audit. Customer will promptly pay SmartHop for any amounts shown by such audit to be due and owing to SmartHop.

4. TERM & TERMINATION

4.1. Term.  This Agreement will remain in full force and effect for as long as Customer continues to access and/or use the SmartHop Service (or any part thereof), until terminated in accordance with the provisions of this Agreement.

4.2. Termination.  Either party may terminate this Agreement, for any reason, upon thirty (30) days prior written notice.  In addition, SmartHop may terminate this Agreement immediately without further notice if Customer breaches its obligations under this Agreement and does not remedy such breach within ten (10) calendar days of the date on which Customer receives written notice of such breach from SmartHop.  In addition, at any time, SmartHop may suspend or terminate Customer’s and/or any Authorized User’s right to access or use the SmartHop Service (or any part thereof), if SmartHop, in good faith, believes that Customer and/or any Authorized User has used the SmartHop Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules.

4.3. Effects of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Platform shall immediately terminate and Customer shall cease use of the Platform; (ii) SmartHop’s obligations to perform the Services shall immediately terminate; (iii) Customer shall pay to SmartHop the full amount of any outstanding fees due hereunder; and (iv) within ten (10) calendar days of such termination, each party shall destroy or return all confidential and/or proprietary information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. The following Sections shall survive the termination or expiration of this Agreement: 1.2, 1.4, 1.5, 2, 3, 4.3, 5, 6.1, 7, 8, 9, 10, 11, 12, and 13.

5. PROPRIETARY RIGHTS

5.1. SmartHop Ownership. As between Customer and SmartHop, SmartHop and/or its licensors retain all right, title and interest, including, without limitation, any and all intellectual property rights, in and to the (i) the Services, Platform and related documentation, (ii) any and all content, messages, data, text, graphics, images, photos, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the or in connection with the SmartHop Service (collectively, “Content”), including, without limitation any and all data and/or information regarding any brokers, shippers and/or Loads provided and/or made available to Customer in connection with a Transaction or otherwise in connection with the use of the SmartHop Service (“Load Data”), but, in each case, excluding Customer Data, and (iii) any and all modifications, enhancements and updates to the Platform, Services, Content and/or Load Data. In addition, unless otherwise expressly agreed by the parties in writing, SmartHop will own all right, title and interest, including all intellectual property rights, in and to any work product developed in the course of the Services. Nothing in this Agreement will be understood to prevent SmartHop from developing similar work product for other customers. The SmartHop Service, and its underlying technology, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. The SmartHop trademarks are strictly owned by SmartHop, and nothing in this Agreement will be construed to transfer ownership rights or grant any permission, license or other rights to any SmartHop trademark without written authorization from SmartHop. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the SmartHop Service or (or any part thereof) may be the trademarks of their respective owners. SmartHop reserves all rights and licenses not expressly granted to Customer in this Agreement and no implied license or right is granted by SmartHop.     

5.2. Operational Metrics. SmartHop monitors and collects anonymized statistics, metrics, analytics, and data regarding the performance and operation of the Platform in connection with Customer’s and its Authorized Users’ use of the SmartHop Service, and other operational and technical metrics necessary to manage and perform the SmartHop Service (collectively, “Operational Metrics”). Customer grants to SmartHop a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to collect, analyze and use Operational Metrics relating to our delivery of the SmartHop Service and Customer’s and its Authorized Users’ use of the SmartHop Service, including Operational Metrics that may be derived from or relate to Customer Data, for SmartHop’s business purposes, including, but not limited to, improving, testing, and maintaining the Platform, developing additional products and services, and generating reports for internal, external, and public use. SmartHop may only publicly distribute Operational Metrics in aggregate, non-personally identifiable form that cannot be used to identify Customer or any individual Authorized User.

5.3. Feedback. To the extent Customer and/or any Authorized User provides any suggestions and/or feedback to SmartHop regarding the functioning, features, and other characteristics of the SmartHop Service, or other materials or services provided or made available by SmartHop, including, without limitation, any improvements or modifications thereto (“Feedback”), Customer hereby assigns to SmartHop all Customer’s right, title, and interest in and to the Feedback and any and all intellectual property rights thereto.

6. CONFIDENTIALITY; PUBLICITY

6.1. Confidentiality.  “Confidential Information” means with respect to (i) SmartHop: (a) the Platform and any related documentation, Services, Content, Load Data, and Feedback, (b) the fees, (c) all proprietary and non-public information regarding SmartHop’s products, services, and business, and (d) all materials and information disclosed under this Agreement that are marked “confidential” by SmartHop or that Customer knows or should have known, under the circumstances, are considered confidential by SmartHop; and (ii) Customer: (a) Customer Data and (b) all materials and information disclosed under this Agreement that are marked “confidential” by Customer or that SmartHop knows or should have known, under the circumstances, are considered confidential by Customer. Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Customer and SmartHop will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.

6.2. Publicity. During the term of this Agreement, Customer hereby agrees that SmartHop shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the SmartHop Service on SmartHop’s websites and in other marketing materials promoting the SmartHop Service.

7. INDEMNIFICATION

Customer hereby agrees to indemnify, defend and hold harmless SmartHop and its parents, affiliates, subsidiaries, licensors, and third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, a “SmartHop Party”), from and against any and all claims, costs, losses, expenses, liabilities, damages, demands, threats, suits, actions, causes of action, proceedings, judgments, fines, penalties, interest, and costs (including, without limitation, attorneys’ fees and costs) arising out of, or relating to: (i) Customer’s and/or any Authorized Users’ breach of this Agreement or violation of any end user terms of use or similar agreement applicable to Third Party Integrations, (ii) Customer Data, or a violation of Data Protection Laws, or any other applicable laws, rules or regulations by Customer; (iii) failure to give sufficient notice to, or obtain sufficient consent from, applicable data sources with respect to the collection, use, processing and disclosure of Personal Data, including, without limitation, Authorized Users and Customer Vehicle drivers or passengers, as set forth in Section 2.5; (iv) Customer’s and/or its Authorized Users’ use of the SmartHop Service; (v) claims brought by any broker and/or shipping arising from or related to Transactions, including, without limitation, any disputes related thereto, and/or any breach by Customer of any Transactions Terms; (vi) claims brought by any Authorized User, or any driver or passenger in a Customer Vehicle; (vii) bodily injury, illness, disease or death to any third party and/or loss of or damage to any third party property and/or for any and all other loss or damage sustained by SmartHop or any third party (including, without limitation, any broker, shippers, Authorized Users, and/or Customer Vehicle drivers and/or passengers) arising from or as a result of Customer’s performance of any Transactions or any other services provided by Customer; and/or (vii) Customer’s gross negligence, fraudulent misrepresentation or willful misconduct. SmartHop shall notify Customer promptly in writing of any such action, and Customer shall have sole control of the defense thereof and any related settlement negotiations. At Customer’s reasonable request and expense, SmartHop will reasonably cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of SmartHop or any SmartHop Party or requires SmartHop or any SmartHop Party to contribute to the settlement without SmartHop’s prior written consent. SmartHop and any SmartHop Party may participate and retain its own counsel at its own expense.

8. DISCLAIMER

THE SMARTHOP SERVICE AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY SMARTHOP HEREUNDER ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND SMARTHOP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SMARTHOP DOES NOT WARRANT THAT THE SMARTHOP SERVICE (OR ANY PART THEREOF) AND/OR ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY SMARTHOP HEREUNDER, WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS, OR THAT THE USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SMARTHOP SERVICE WILL BE CORRECTED. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SMARTHOP SERVICE, AND ALL RESULTS OF SUCH USE, AND CUSTOMER’S PERFORMANCE OF ANY TRANSACTIONS, IS SOLELY AT CUSTOMER’S OWN RISK. SMARTHOP DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE SMARTHOP SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS), AND SMARTHOP WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMARTHOP OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.

9. LIMITATION OF LIABILITY

9.1. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, SHALL SMARTHOP BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SMARTHOP SERVICE (OR ANY PART THEREOF), REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF SMARTHOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2. Limitation of Damages. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SMARTHOP’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR FOR INDEMNITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO SMARTHOP FOR THE TRANSACTION GIVING RISE TO THE LIABILITY.

9.3. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9.4. Jurisdictional Issues; Allocation of Risk. SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE DISCLAIMERS, LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, THE LIABILITY OF SMARTHOP FOR SUCH DAMAGES WITH RESPECT TO THE SMARTHOP SERVICE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.

10. GOVERNING LAW & JURISDICTION

This Agreement will be construed and enforced in all respects in accordance with the laws of the state of Florida, without reference to its choice of law rules and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. The federal and state courts located in Miami-Dade County, Florida, will have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, this Agreement, and each party hereby irrevocably waives any objection to such exclusive jurisdiction. Notwithstanding the foregoing, SmartHop may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors.

11. NOTICES

All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Notices shall be sent (i) to Customer at the email address or other address SmartHop has on file for Customer, and (ii) to SmartHop at hello@smarthop.co; Subject Line: Legal Notice – Customer Terms of Service Agreement. Each party may update its contact information from time-to-time pursuant to this Section 11. Customer agrees that all agreements, notices, disclosures, and other communications that SmartHop provides to Customer electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

12. GENERAL PROVISIONS

Customer shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its duties or obligations arising under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of SmartHop. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral. The terms on any purchase order, confirmation, or similar document submitted by Customer to SmartHop will have no effect and are hereby rejected. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.

13. CHANGES TO THIS AGREEMENT

SmartHop reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on the web page https://www.smarthop.co/terms-of-service. All updates and modifications to this Agreement will be effective from the day they are posted online (except as stated below). SmartHop agrees to notify Customer of any material changes to the terms of this Agreement by posting a notice of the changes on our website located at https://www.smarthop.co (the “Site”), and SmartHop may also provide notice of such changes to Customer at the email address on file for such Customer. Customer is solely responsible for reviewing this Agreement for any changes and/or modifications. If Customer does not agree to any updates or modifications to this Agreement, Customer may cease us of the Services and cease submitting Transactions. Customer’s and/or any Authorized User’s continued use of the SmartHop Service (or any part thereof) after SmartHop has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date SmartHop posted the notice of such changes on the Site and/or notified Customer via email, as applicable, signifies Customer’s acknowledgment and agreement to be bound by the revised Agreement.

14. QUESTIONS

Please feel free to contact SmartHop at hello@smarthop.co if you have any questions about the terms of this Agreement.

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