FREIGHT BROKER AGREEMENT

TERMS AND CONDITIONS

 

The Customer or User herein referred as “Customer” or “User” and Prime Worldwide Inc. and affiliates herein referred as “PWW” hereby agrees as follows:

 

  1. Parties.

Customer is a Shipper and/or Consignee of certain goods that it wishes to have transported by PWW which is registered as a transportation freight broker. PWW is not acting as either a Motor Carrier, or Common Carrier, or Contract Carrier within the meaning of USC Title 49. PWW contracts with various freight carriers “(Carriers”) on behalf of Customer for the purpose of arranging transportation of Carrier’s goods in interstate and foreign commerce. PWW reserves the right, in its sole discretion, to refuse any shipment at any time. PWW and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement.

 

  1. Terms of Use

The user of PWW services, together with all other related services, transportation or otherwise, and features offered therein together with its web-based interfaces (collectively referred to as the “Service”), whether an individual, corporation or other business entity, or an employee acting on behalf of his/her employer (hereinafter individually and collectively referred to as “User”), agrees to abide by the terms and conditions of PWW Terms of Use (“Terms of Use”), which cannot be altered by the User or any agent or employee of the User. If the User is utilizing the Service on behalf of a corporation, company, business or other legal entity, the User represents and warrants that the User has the authority to bind such entity to the Terms of Use, in which case the term “User” shall refer collectively to the individual user and such entity. Any rights not expressly granted to the User by PWW in these Terms of Use are hereby reserved.

The User’s use of the Service constitutes the User’s agreement to the following terms and conditions. If the User does not agree to the Terms of Use, the User should not use or access the Service. The User’s continued use or access of the Service constitutes the User’s (a) acknowledgment of the Terms of the Use; and (b) agreement to abide and be bound by the terms and conditions contained herein. PWW reserves the right to make modifications, alterations or updates to this Service and these Terms of Use at any time without notice to the User. The User accepts the affirmative obligation to periodically review whether or not these Terms of Use have changed, and the User’s continued use or access of the Service constitutes the User’s (c) acknowledgment of the modifications, alterations or updates to the Terms of Use; and (d) agreement to abide and be bound by the modified, altered or updated terms and conditions contained in the Terms of Use. The most current version of the Terms of Use can be reviewed by clicking on the “Terms of Use” link at the bottom of each page of the Service. Should the User enter into a separate, written contractual agreement with PWW and affiliates for the arrangement of freight in interstate and foreign commerce, the terms and conditions of such separate contractual agreement will supersede and take precedence of these Terms of Use.

  1. Tariffs; Terms and Conditions of Carrier.

In the event of a conflict in the terms of this Agreement and applicable tariff then in effect with the carrier, this Agreement shall apply to the transport and shall take precedence in the interpretation of the rights and obligations of the Parties. Customer is responsible for requesting and reviewing Tariffs in effect with a designated Carrier. PWW is not obligated to provide copies of motor carrier tariffs, or any information contained therein, to Customer.

 

  1. Bills of Lading.

The Customer is to use the PWW’s system-generated Bill of Lading (“BOL”). The Customer shall complete all the appropriate documents required for carriage, in light of the services being sought, and the pick up or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, PWW may at its option, but without obligation, complete, correct or replace the documents. If a substitute form of BOL is needed to complete delivery of this shipment for any reason and PWW completes that document, the terms of the completed BOL will govern and PWW will be exonerated from all liability for undertaking such actions on behalf of the Customer including specifically liability for, in whole or in part, negligence by PWW. All Bills of Lading are non-negotiable and will have been prepared by the Customer or by PWW on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed, conclusively, to have been prepared by the Customer. The Customer is to provide the PWW BOL. PWW shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by PWW, or (iii) the use of any bill of lading not authorized or issued by PWW.

 

  1. Customer Representations and Warranties.

PWW and the User represent and warrant that each has the legal power and authority to enter into and abide by the Terms of Use. PWW represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof under normal use and circumstances. The User represents and warrants that the User has not falsely identified itself nor provided any false information to gain access to the Service. Further, the User acknowledges that it is responsible for and warrants that each shipment presented for transport through the Service shall be in compliance with all applicable laws, rules, and regulations. PWW shall not be liable to the User, any other party who claims an interest in the shipment, or any other person or entity, for any loss or expense due to the failure of the User to comply with the terms of this provision. PWW does not represent or warrant that the Service may be lawfully viewed or accessed outside of the United States of America. If the User accesses the Service from outside the United State of America, the User does so at the User’s own risk and the User is responsible for compliance with the laws of such jurisdiction. All maps and directions presented on or within the Service are for informational purposes only. No representation is made or warranty is given as to their content, road conditions or route usability or expeditiousness. User assumes all risk of use. PWW its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents assume no liability or responsibility for any delay or loss resulting from the use of such map or directions. 

 

  1. Payment.

All charges are payable in US Dollars and are due and payable seven (7) days from the date of billing (net/7). Past due invoices shall be subject to an additional charge at the rate of 1½% per month of the average outstanding balance due. All funds received by PWW will be applied to the oldest (based on pick-up date) invoiced BOL outstanding. Overpayments do not accrue interest. In the event past due invoices are given to an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all interest payments, and collection costs including reasonable attorney’s fees.

 

 

  1. Credit Approval.

All payments are presumed to be prepaid freight charges. Customer must pay freight charges before shipping. If customer is requesting payment terms, payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of PWW. The Customer grants PWW the right to perform such credit and background searches as PWW deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account or such Customer’s shipment. The Customer authorizes PWW to charge the Customer’s credit card or bank account for any and all charges.

 

  1. Determination of Charges.

The Customer shall be liable for all charges payable on account of such Customer’s shipment. Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. PWW reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer; or (ii) if additional services by the carrier were required; or (iii) if the Customer authorized the carrier to perform the pickup, transportation and delivery functions other than contemplated by the BOL. Any dispute by customer of any invoice issued by PWW shall be made in writing, specifically indicating the nature of the dispute and made within 7 days from the date of the invoice. In the event PWW does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid.

 

  1. Lien.

PWW shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer. Customer authorizes PWW to advise third parties of asserted liens and to hold possession of any shipment against which a lien is asserted. Storage and other shipping and handling fees and charges will apply to freight being held on lien. If charge(s) are not paid within 7 days, PWW reserves the right to sell shipped cargo to recover all freight charge(s).

 

  1. Claims and Limitations of Liability.

PWW is not liable for any loss, damage, misdelivery or non-delivery caused by: (i) the act, default or omission of a Carrier; the Customer or any other party who claims interest in the shipment; or (ii) the nature of the shipment or any defect therein; or (iii) a violation by the Customer of any provision of this Agreement, the BOL, the carrier’s tariff, including, improper or insufficient packing, securing, marking or addressing; or (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions; or (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment; or (vi) the acts or omissions of any person other than employees of PWW; or (vii) the selection of carrier for a particular shipment.

Customer acknowledges that in order to provide competitive rates for the services, that the parties have agreed as a material term of this Agreement that the risk of loss or damage incurred as a result of PWW’ alleged liability shall be limited to the fees that PWW has earned with respect to the subject shipment. Customer specifically acknowledges that PWW shall have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constitute gross negligence. There is a minimum claim amount of fifty dollars ($50) (after limit of liability rule has been applied) on damage/shortage claims in order for PWW to file a claim with the carrier. There is a minimum claim amount of fifty dollars ($50) (after the 1/3 rule has been applied) on for concealed damage claims in order for PWW to file a claim with the carrier.

In the event the User asserts inaccurate or inadequate commodity information when describing the freight on the Service for any load or shipment, the freight may not be covered by the motor carrier’s insurance and may result in the motor carrier’s denial of liability for any such Damage caused to such freight while in its care, custody or control unless such Damage was the result of the motor carrier’s reckless or intentional act or omission. Under no condition shall PWW require or authorize a motor carrier to violate any applicable law, code, or regulation. In the event the freight is Damaged, any and all claim inquiries must be directed toward the motor carrier contracted. In order to work toward a timely resolution of any freight claim, the User is requested to contact PWW immediately and provide details of the Damage.

PWW shall provide the User with the motor carrier’s contact and insurance information upon request. PWW will attempt to assist in the resolution of freight claims, but PWW has no responsibility or liability related to or arising out of any claim. If the Damage is apparent, the receiving party (consignee) must note such Damage information on the bill of lading/delivery receipt. If the Damage is not apparent (concealed), the User must contact the motor carrier as soon as the Damage is discovered, but not later than 72 hours following delivery. The filing of a cargo claim does not relieve the User for payment of freight charges to PWW. Freight payment is necessary in order for a carrier to process a claim. PWW shall only be liable for Damage caused by PWW’s own gross negligence. Notwithstanding the foregoing, PWW’s liability therefore shall be limited to the rate paid by the User to PWW with respect to the subject shipment.

If cargo needs to have insurance coverage greater than $0.10 per pound, additional coverage is required to cover cargo shipped. It is the responsibility of the customer/shipper to purchase additional insurance (shipper’s interest insurance) as required.

Excluded Cargo Commodities. The User shall provide an accurate commodity description and attest to the specifications and description of the freight to be transported through use of the Service. However, the User shall not use the Service to transport Excluded Cargo Commodities (as defined herein). In the event the freight to be transported is a commodity commonly excluded under commercial cargo policies, as specified herein (“Excluded Cargo Commodities”), the User shall remain liable for the freight charges. Failure to specify in the appropriate Freight Information section on the Service that the Service shall be used to arrange for the transportation of an Excluded Cargo Commodity, as set forth herein, shall eliminate any and all of PWW’s and the transporting motor carrier’s liability for that load for any and all loss, damage or destruction to such Excluded Cargo Commodity, regardless of the motor carrier’s knowledge of such commodity upon pickup. In addition, the User shall not use the Service for the transportation of hazardous materials or household goods as defined in 49 U.S.C. §13102.

Such Excluded Cargo Commodities shall include but not limited to: accounts, bills, deeds, letters of credit, passports, lottery or other tickets, stamps, money, currency, securities, checks, notes, blueprints, mechanical drawings, manuscripts, other valuable papers or records, bullion, coins, precious or semi-precious stones, jewelry or watches, abstracts, paintings, etchings, drawings, rare books, tapestries, sculptures, statuary and other bona fide works of art, rarity, historic value or artistic merit, precious alloys or metals; furs or fur garments; cigarettes, cigars, narcotic and prescription drugs; televisions, all forms of digital and video media software and equipment, video and digital game equipment and software, computer hardware and software, and stereo equipment; alcoholic beverages of every description including beer, ales, and wine; seafood, other than frozen dinners or canned products; and live animals, vehicles, automobiles, trailers, containers or any and all explosives (collectively, the “Excluded Cargo Commodities”).

 

  1. Insurance.

The Customer will look solely to its own insurance, a Shipper’s policy, or insurance provided by the carrier for damage to goods in transit. Each carrier’s governing tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to PWW for transmission to the Carrier or its insurer.

PWW will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of Customer, PWW shall have a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. PWW has optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. PWW has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.

If cargo needs to have insurance coverage greater than $0.10 per pound, additional coverage is required to cover cargo shipped. It is the responsibility of the customer/shipper to purchase additional insurance (shipper’s interest insurance) as required.

 

 

  1. Disclaimer of Warranties.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PWW MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. PWW CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL PWW BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN TO PWW. PWW MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. PWW DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR MAINTAIN A CERTAIN PERCENTAGE OF AVAILABILITY OR “UPTIME,” (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE USER THROUGH THE SERVICE WILL MEET THE USER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. IN ANY EVENT, PWW SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT PWW HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. Rates.

“Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight Classification (“NMFC”) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload rates (“TL”) rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are mileage based. Additional fees may apply for charges including, Tractor Detention, Trailer Detention, and Lumper Fees. Customer must tender this load to carrier at the agreed upon rate, or pay a “truck ordered, not used” penalty at cost. Detention charges apply after one hour of waiting at shipper or receiver. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit delays may apply. Van Line rates are based on mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on transport equipment type, mileage and weight. If a shipment includes over-dimensional freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.

 

  1. Guaranteed Services.

PWW will provide TL and LTL Guaranteed Services for additional charges, if requested by the Customer. TL and LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the individual carrier. The Customer is liable for all charges related to the shipment. In the event of a carrier’s failure to comply with the guaranteed service requested, the Customer shall have seven (7) days from the actual delivery date of shipment to file a written claim request with PWW. If PWW does not timely receive a claim request within seven (7) days, the service provided by the TL and LTL carrier will be deemed to have met all guaranteed service standards and the claim request will be considered invalid and denied. In the event of the carrier’s failure to comply with the guaranteed service requested and after the carrier has agreed to liability and has paid the amount to Customer to PWW, PWW will credit the account of Customer with such amount and paid by the carrier. In no event shall PWW be liable, nor will any account be credited if the Customer does not use PWW’s BOL.

 

  1. Binding Nature of Agreement; Assignment.

This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that no party may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld.

 

  1. Headings.

The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.

 

  1. Execution.

This Agreement shall be binding upon receipt by PWW of Customer’s acknowledgment of its intent to be bound thereby, as evidenced by its designation of acceptance of PWW’s web page or by its execution of the BOL, or by other acknowledgment by the Customer.

 

  1. No Other Parties to Benefit.

This Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have the rights or benefits hereunder, whether as third-party beneficiaries or otherwise.

 

  1. Remedies.

In the event of a breach of this Agreement or any term hereof by any party, the other Party shall have all rights and remedies available at law, in equity, or under the terms of this Agreement, except as otherwise limited herein.

 

  1. Construction.

This Agreement is intended to express the mutual intent of the Parties hereto, and irrespective of the identity of the Party or counsel who prepared this document, no rule of strict construction shall be applied against any Party.

 

  1. Governing Law; Forum; Venue.

This Agreement is deemed executed, delivered and performed in the State of California, and the substantive laws of the State of California  and Federal law as applied in California without reference to choice of law principles and specifically excluding the United Nations Convention on Contracts for the International Sales of Goods, shall govern its interpretation and enforcement. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Superior Court in and for the County of Los Angeles in the State of California and each Party consents to jurisdiction and venue in such court for such purposes.

 

  1. Modification and Waive and Complete Agreement.

PWW reserves the right to make modifications, alterations or updates to this site and these terms and conditions at any time and without notice to users. You accept the affirmative obligation to periodically review whether or not these terms and conditions have changed, and your continued use of this site shall be deemed an acceptance and agreement to be bound by such modifications, alterations or updates.

 

  1. Materiality.

All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the acceptance of this Agreement.

 

  1. Severability; Integration.

The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.

 

  1. Additional Instruments and Acts.

The Parties to this Agreement shall execute (with acknowledgment or in affidavit form, if required) any further or additional instruments, and shall perform any acts, which are or may become reasonably necessary to effectuate and carry out the purposes of this Agreement, without the necessity of incurring any additional expense.

 

  1. Interpretation.

In this Agreement the singular includes the plural, and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation.”

 

  1. Authority and Licensing.

By execution of this Agreement, the signatories hereto represent and warrant their authority to act in the capacity stated. By execution of this Agreement each Party represents and warrants its right, power and authority to enter into and to perform its obligation under this Agreement. User acknowledges that PWW is strictly a software provider, providing the User with transportation pricing through the Service. PWW is strictly a freight broker arranging for the transportation of property. As PWW is not a motor carrier, it does not physically transport freight. The User acknowledges that all orders for services placed through the Service are tendered by such User directly to PWW to arrange transportation of the freight. PWW reserves the right, in its sole and absolute discretion, to refuse any shipment quoted by the Service or Order placed by the User at any time for any reason. Such refusal by PWW shall void the Quote and resulting Order and release PWW from any obligation to provide further transportation or other services under such Quote and/or Order. Insertion of PWW’s name on a bill of lading by the User shall be for the User’s convenience only and shall not change PWW’s status as a freight broker. 

 

  1. Use of the Service

Please note that, as explained further below, your use of the PWW website is at your own risk. The User may not access the Service if the User is a direct competitor of PWW, except with PWW’s prior written consent and acknowledgment of the User’s status as a competitor. In addition, the User may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other rate, benchmarking or competitive purposes. The User shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to the Service or “frame” or “mirror” any portion of the Service on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Usernames and Passwords cannot be shared or used by more than one individual User, but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. The User may use the Service only for the User’s internal business or personal purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

 

  1. Privacy Policy

The PWW privacy policy (“Policy”) governs the use of information acquired from the User through the Service. PWW reserves the right to change this Policy at any time. Such changes, modification, additions or deletions shall be effective immediately upon notice thereof, which includes, but not limited to posting the revised Policy on this Page. The User acknowledges and agrees that it is the User’s responsibility to review this site and this Policy periodically and to be aware of any modifications.

 

  1. Internet Delays

THE SERVICES MAY BE SUBJECT TO AVAILABILITY LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PWW IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

  1. Intellectual Property Rights.

Portions of the Service may be protected as the copyrights, trademarks, and other intellectual properties of PWW, its affiliates or its parent organizations, or of other parties that have licensed their material to PWW. Except as expressly set forth in the Terms of Use, nothing contained herein or in the Service shall be construed as granting to the User a license under any copyright, trademark, or other intellectual property right of PWW, its affiliates or its parent organizations, or of any third party. No logo, graphic, or image of or contained within the Service may be copied, retransmitted, or published without the express written permission of PWW.

 

  1. Indemnification.

The User shall indemnify and hold the PWW, their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any and all claims arising from the User’s breach of the Terms of Use, and any of the User’s activities conducted in connection with the Service.

 

  1. Additional Rights.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

  1. Termination of Use.

PWW may discontinue, suspend or modify the Service at any time with or without reason and without notice, and PWW may block, terminate or suspend any User access to the Service at any time for any reason in its sole discretion, even if it allows access to others.

 

  1. Third-Party Links.

The Service may contain links that allow the User to visit third-party websites. Neither these websites nor the third-party companies to whom they belong are controlled by or otherwise affiliated with PWW. PWW makes no representations concerning the information provided or made available on such websites or the quality or acceptability of the products or services offered by any persons or entities referenced in any such third-party websites. PWW makes no representations regarding the correctness, performance or quality of any software found at any such website.

 

  1. General.

The Terms of Use shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions, and any disputes, actions, claims or causes of action arising out of or in connection with the Terms of Use or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, CA. Should any litigation, action or proceedings be commenced between the User and PWW concerning the Service, the Terms of Use, or their respective rights and obligations in relation to the Terms of Use, in the event PWW prevails in such action, PWW shall be entitled, in addition to any other relief that may be granted, to recover its attorneys’ fees and costs, whether incurred before or after commencement proceedings, and regardless of whether incurred pursuant to trial, appellate, mediation, arbitration, bankruptcy, or judgment-execution proceedings. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between the User and PWW as a result of the User’s use of the Service. The failure of PWW to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PWW in writing. The Terms of Use comprises the entire agreement between the User and the PWW supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between PWW and the User regarding the use of the Service. Further, any term, condition or provision contained within a bill of lading shall not modify, alter, or amend the terms contained herein, and these Terms of Use shall supersede and govern over any inconsistent or contrary terms contained within a bill of lading.