Last Updated: September 7, 2021
This Terms of Service Agreement (the “Agreement”) describes the terms by which (“Torch Logistics, INC.”) offers to you, as a Shipper, access to its website torch3pl.com(the “Site”) and the associated mobile software application platform owned and operated by Torch. Torch provides an online and mobile platform (the “Service”) to connect Shippers with Carriers for the transportation of cargo whereby Shippers can submit a request for the transportation of cargo (“Shipment”). Carriers can accept such requests, and both Shippers and Carriers can track such requests. The Service includes access to all applications, content and downloads offered by Torch, including the Site, Mobile App, and associated user content. Torch does not assess the suitability, legality, regulatory compliance, quality or ability of any Shipper or shipped items scheduled through the use of the Service, and Torch makes no warranty regarding the same.
This Agreement sets forth the terms for use of the Service by Shippers. By signing up and registering with Torch or by accessing or using the Service, you are accepting this Agreement, on behalf of yourself or the company, entity or organization that you represent, and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement, on behalf of yourself or the company, entity or organization that you represent. You may not access or use the Service or accept this Agreement if you are not at least 18 years old. Please read this Agreement carefully before using the Service. Use of the Service is conditioned on your agreement to all of the terms and conditions contained in the Agreement, including the policies and terms linked to or otherwise referenced in the Agreement, all of which are hereby incorporated into the Agreement. In the event any separate contract or like document governs or otherwise impacts the parties’ rights, obligations or relationship, this Agreement shall govern to the extent it does not conflict with the terms of any such other contract or like document.
IF YOU DO NOT SO AGREE, YOU SHOULD DECLINE THIS AGREEMENT, IN WHICH CASE YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE.
1. DEFINED TERMS
Carrier means a motor carrier as defined by 49 USC §13102(14) with authority issued by the federal and applicable state governments to haul cargo for hire. A Carrier who accesses or uses the Service is an independent contractor and remains solely responsible for screening, selecting, hiring, training, supervising, managing, assigning, and dispatching its drivers; as well as for the inspection and maintenance of its motor vehicle equipment and accessories. A Carrier is solely responsible for its own actions, omissions, training, oversight, compliance with regulatory and safety requirements, and all management of Carrier’s equipment, services, drivers, employees, contractors, agents and servants. A Carrier maintains sole control over the methods and results by which it performs cargo transportation services, and retains the sole duty to provide, maintain, manage and control the equipment, personnel, and expertise required to transport your cargo. Torch is not an agent of any Carrier, and no Carrier is an agent of Torch.
TORCH IS NOT A MOTOR CARRIER. NO INTERPRETATION OF WRITTEN OR ORAL REMARKS IN ANY AGREEMENT OR DOCUMENT SHALL BE CONSTRUED TO IMPLY TORCH IS A MOTOR CARRIER, OR THAT TORCH IS SUBJECT TO THE REGULATORY OR LEGAL REQUIREMENTS OR LIABILITIES OF A MOTOR CARRIER. TORCH HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION OR MOTOR CARRIER SERVICES PROVIDED TO ANY SHIPPER OR ANY OTHER PARTY USING THE SERVICES.
Torch is a federally licensed freight broker as defined by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation. Torch’s sole obligation is to arrange transportation of cargo by a Carrier that is appropriate and authorized to operate by all applicable governmental agencies. As a freight broker, Torch does not take possession, custody or control of any cargo. Torch does not assume any liability, possessory rights or obligations, and assumes no financial responsibility whatsoever, for cargo, including loss, theft, damage or delayed delivery thereof.
Torch offers a platform to connect Shippers and Carriers, but does not provide actual transportation services or act in any way as a Carrier. It is the Carrier’s obligation to provide transportation services, which may be scheduled through the use of the Service. Torch has no responsibility for any shipping services provided to you as a Shipper by any Carrier.
You, as a Shipper, are defined by 49 USC §13102(13), and warrant that you own, possess, or otherwise have rights to transport cargo you seek to ship by way of the Service.
A User is any entity which accesses or uses the Service, and may be a Carrier or a Shipper.
5. “User Content”
User Content means any and all information, data, textual, audio, and/or visual content, commentary and feedback related to the Service, ratings, reviews and other content that a User submits to, or uses with, the Service. User Content includes the information provided in a Shipment request or acceptance.
6. Torch and you are independent contractors, and except to the extent required by law, no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
2. DESCRIPTION OF SERVICES
1. Shipment Requests
Torch provides a platform via the Mobile App and Website (defined above as the “Service”) through which you may submit proposed Shipments. You must provide the following information as part of requesting a Shipment:
1. The origin and destination addresses for the Shipment;
2. The requested dates for pickup and drop-off of the Shipment;
3. A description of the cargo being transported as part of the Shipment (including weight);
4. The specific equipment requirements; and
5. Any other information necessary for the safe and proper transportation of the cargo.
Torch is not responsible for any Shipment terms entered into between you and any Carrier. Once Torch accepts a Shipment for posting, the Shipment’s details will be posted to the Service. You may cancel a Shipment at any time prior to a Carrier accepting it. A Carrier may view a list of the Shipments available to it at any time and accept a Shipment through the Service. Once a Carrier accepts a Shipment, it will be assigned to perform transportation services related to the Shipment. Upon a Carrier’s acceptance, Torch will notify you that the Shipment has been accepted. Torch does not guarantee that a Shipment will be accepted by any Carrier.
2. Bills of lading and proofs of delivery
By Torch’ Terms & Conditions applicable to Carrier, Carriers whose services are engaged hereunder are instructed to issue bills of lading to their Shippers as required by 49 USC §14706(a)(1), and to upload copies of those bills of lading to the Service. Carriers are instructed not to name Torch as either a shipper or consignee on any bill of lading. Once a Shipment is completed, the Carrier is instructed to post to the Service a proof of delivery signed by the authorized recipient.
As a value added service to you, but not as any legal or contractual obligation, Torch may provide you and Carriers with trouble shooting, tracking, inquiry, and other services. In order to do so, however, Torch must have access to the bill of lading a Carrier issues to you for the subject Shipment. In the event a Carrier fails to post a bill of lading to the Service, we may request that you post it yourself, or otherwise make it available to Torch.
3. Completion of the Shipment
By Torch’ Terms & Conditions applicable to Carriers, Torch instructs Carriers to upload to the Service a proof of delivery signed by the consignee once Shipments are completed, and send you any questions or concerns regarding the Shipment.
3. YOUR RESPONSIBILITIES
1. Representations and Warranties
You hereby represent and warrant as follows:
1. You will not use the Service to ship hazardous materials;
2. You own the shipped cargo or have all necessary rights to ship it;
3. You agree that Torch will not be liable for loss, damage, theft, destruction, or delayed delivery of any cargo;
4. You are solely responsible for obtaining any first-party insurance to cover any anticipated losses of cargo; and
5. Your requested pick-up and delivery dates and hours will not require a Carrier to violate hours of service regulations under applicable law.
2. Claims for Loss or Damage
You are advised for informational purposes that a Carrier’s liability for lost, destroyed damaged or delayed cargo in interstate and international transit generally is defined by 14 USC §14706 (referred to as “the Carmack Amendment”) and by comparable state common law for intrastate transit. A Carrier may impose time limits for filing of loss and damage claims, as well as for filing any action at law for cargo loss or damage as provided by 49 USC §14706. We recommend you consult with a qualified attorney regarding any action you might wish to pursue against a Carrier based on lost, damaged, delayed or destroyed cargo.
Should you wish Torch’ assistance with or other participation in any claim for lost, damaged, delayed or destroyed cargo, you should file with Torch its written notice of claim to Carrier. Torch may facilitate processing of cargo claims; PROVIDED, however, you understand and agree that, notwithstanding Torch’ participation in or assistance with any cargo claim, Torch is not liable for any cargo loss which was not proximately caused by Torch’ own wrongdoing.
During the term of this Agreement, and for a period of one (1) year from its termination, you shall neither initiate nor accept any direct or indirect business relationship with any Carrier to which you are first introduced by the Service, or in connection with use of the Service. You understand that any such Carrier will offer and provide transportation services to it exclusively through the Service unless otherwise agreed by the parties in writing. Your obligation in this regard extends to instances where the Carrier contacts you and seeks to establish a business relationship that does not include Torch. This provision shall continue in force beyond termination of this Agreement for one (1) year subsequent to termination.
If you book or otherwise makes available any direct or indirect business relationship with any Carrier that was first introduced to you by Torch in violation of this Agreement, you shall be jointly and severally liable with the Carrier to Torch for each such violation in an amount equal to twenty percent (20%) of all revenues invoiced by Carrier to you.
4. Cargo Description and Disclosures
You shall disclose to Torch all information reasonably necessary for Torch to arrange transportation in compliance with applicable regulatory, legal and industry standards. You shall also be responsible and liable for providing accurate description of cargo including without limitation commodity type, dimensions and weight, and any special handling requirements.
5. Cargo Securement
You shall bear the maximum responsibility allowed by law to review and accept or decline the Carrier’s trailer for cleanliness, odor, leaks, dirt or other conditions that may be unacceptable to you. If a trailer or any equipment is unacceptable, it is your responsibility to refuse loading of the trailer. In such event, you may notify Torch immediately and request alternative arrangements. You should ensure in coordination with Carrier that adequate blocking, bracing and packaging for the safe stowage of cargo is used.
You acknowledge that Torch will never be in possession of any cargo being transported in connection with use of the Service, and that Torch will not be responsible or have any role in the securement of cargo for transportation.
6. Shipping Documents
You shall not insert “Torch” or “Torch, Inc.” on any receipt, bill of lading, manifest, or other shipping document. In the event you do so, such insertion shall be deemed to be for your convenience, or due to your oversight, and shall not operate to alter Torch’ status as a Broker, or the Carrier’s status as the responsible Carrier. The provisions set forth in any shipping document used by a Carrier or you shall not supersede, alter, or modify any term of this Agreement or add any liability or responsibility to Torch.
4. CARRIER SELECTION
Torch establishes and follows written procedures to evaluate Carriers prior to their use by Torch. Torch continues to evaluate certain Carriers at certain intervals, as set forth by Torch’ internal risk management and Carrier selection policies, which may be amended from time to time with or without notice to Carriers or Shippers. Torch is not responsible in any way for the acts and/or omissions of Carriers or their drivers.
Torch provides a means for Shippers and Carriers to rate and review each other and to have those ratings made available to other Users. We do not express any opinion, nor does Torch make any assurances regarding, the truth or accuracy of any User reviews or ratings. Torch does not regularly monitor or remove reviews or ratings, or any portion thereof, unless they contain Content we deem inappropriate.
5. PAYMENT TERMS
For each Shipment, you will pay Torch the freight charge quoted to you upon acceptance of the applicable Shipment on the Service (“freight charge”), plus any additional charges you may incur related to the Shipment. Freight charges may include, but are not limited to, detention time which may be charged, by way of example, for time beyond 30 minutes at each location for trucks 26 feet or less in length and 120 minutes at each location for trucks over 26 feet in length, overnight storage due to your not being available or able to receive the Shipment from Carrier, any differences between costs for the actual Shipment and the description of the Shipment created on the Service. Torch may change pricing for the Service (from time to time at its sole discretion) by updating the Site and Mobile App and without notice to Users. Carriers Torch engages generally are required to provide advance notice of ancillary services for which they intend to charge additional fees, such as lumper charges, specialized equipment needed for blocking, bracing, marking or securement, “truck ordered not used” fees, extra stop charges and driver assist charges. However, advance notice is not always possible or practical, and Torch may not be able to receive and communicate to you carrier requests for approval of additional charges before the services are rendered. In that event, you agree to pay the costs of any accessorial and/or ancillary services which Torch determines are reasonable and necessary.
You understand and agree that freight charges quoted to you for a specific transport may be increased or decreased at any time without notice unless and until accepted by your formally booking the transport; and that any accepted or quoted freight charges shall not apply to any future shipments you might seek to book with Torch, as the costs of services evolve over time and are subject to changing market conditions.
Unless otherwise agreed by the parties, payment is due 30 days from the date of each booking, subject to standard interest charges at 12%/annum for late payment.
When it receives full payment of a freight charge (including all surcharges and accessorial charges), Torch shall display a completed charge screen. This is your electronic receipt, and you should print or save it for your records. You warrant that you have the right to use any credit card(s), checks, or other payment means provided to Torch and used to initiate payment of any freight charge. All information you provide to Torch’ third-party payment processor or to Torch must be accurate, current and complete. You agree to immediately notify Torch of any change in your billing address or the credit card or bank account used for payment hereunder.
You agree not to circumvent payments for scheduled or completed Shipments in any way. All payments shall be in United States dollars. Any amount that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event Torch is unable to collect all charges from you due to insufficient funds, you shall be liable for all costs and expenses incurred by Torch in connection with collection of the freight charge, including costs and expenses of a third-party collection agency and attorneys’ fees. Freight charges are non-refundable.
In order to use certain features of the Service, you must register for an account with Torch (“Account”) and provide certain information as prompted by the registration and Shipment creation form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may cancel your Account at any time, for any reason, by contacting Torch or following the instructions on the Service. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. You agree to immediately notify Torch of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Torch is not liable for any loss or damage arising from your failure to comply with the above requirements.
Torch owns the Site and all intellectual property therein. Subject to the terms of this Agreement, Torch grants you a limited, non-transferable, non-exclusive, revocable license to use the Site for your internal business use during the term of this Agreement.
The rights granted to you in this Agreement are subject to the following restrictions:
1. You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service;
2. You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service;
3. You shall not access the Service in order to build a similar or competitive service; and
4. Except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
4. Limited Support
Users may contact Torch’ technical support center for any support-related issues arising from the use of the Service by following the instructions on the Service.
Torch agrees to maintain, at its own expense, at all times, at least the following insurance coverage amounts:
General Liability: $1,000,000
Auto Liability: $1,000,000
Contingent Cargo Liability: $100,000
Upon request, Torch may procure insurance coverage amounts that exceed these limits, and the evidence of such coverage shall be in the form of an insurance certificate provided to you on request. Torch’ maximum liability to you or Carrier for any loss shall be limited to Torch’ insurance policy terms and conditions and the dollar amounts for coverage hereinbelow.
Torch’ contingent cargo insurance is subject to the terms, conditions and certain limitations and/or exclusions as contained in the policy, and the terms, conditions and requirements as outlined within this Agreement, which are subject to change at any time. The existence of Torch’ contingent cargo insurance in no way shifts or places any legal or contractual liability on Torch, nor does it exonerate the Carrier’s duties and liabilities under the 49 USC §14706 or this Agreement.
Torch owns intellectual property rights in and to the Service, including but not limited to the Site, including all related software and servers, in and to Torch’ trademarks, service marks, trade names, logos, domain names, taglines and trade dress (collectively, the “Marks”). Users acknowledge and agree that Torch owns all right, title, and interest in and to the Service, including all intellectual property rights therein. Users understand and agree that without a written license agreement with Torch. Users may not make any use of the Marks. Except as expressly granted in this Agreement, all rights, title and interest in and to the Service, and in and to the Marks are reserved by Torch, Inc.
9. MODIFICATION OF THE SERVICE
Torch reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Torch will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
10. LIMITATIONS ON USE OF THE SERVICE
You agree not to use the Service to upload, transmit, display, or distribute any User Content that: (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way.
In addition, you agree not to use the Service to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Service; or (g) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service.
Torch reserves the right to review any User Content, investigate, and /or take appropriate action against you in its sole discretion, including removing or modifying User Content, terminating your Account, and/or reporting you to law enforcement authorities. However, Torch has no obligation, to monitor, modify or remove any User Content.
11. USER CONTENT
1. User Content
You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate any provision of this Agreement. For the avoidance of doubt, User Content may include third party content you submit. You agree not to submit third party content unless you have the consent of the applicable third party owner of such content. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Torch. You acknowledge and agree that Torch is not responsible for any loss or damage resulting from anyone’s use or reliance on User Content and Torch makes no guarantees regarding the accuracy, completeness, usefulness currency, suitability, or quality of any User Content, and assumes no responsibility for any User Content.
You hereby grant, and represent and warrant that you have the right to grant, to Torch an irrevocable, nonexclusive, royalty-free and fully paid, sublicenseable, worldwide license, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels, now known or hereafter devised (including in connection with the Services and Torch’ business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. All rights in and to the User Content not expressly granted to Torch in this Agreement are reserved by Users.
3. Anonymous Data
Torch may create anonymous data records (“Anonymous Data”) from your User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to you. Torch may use and disclose Anonymous Data for any purpose, including improving the Service.
Torch may share your User Content (a) with third party service providers; (b) if another company acquires Torch; and/or (c) to comply with relevant laws, to respond to subpoenas or warrants or assist in preventing any violation or potential violation of the law or this Agreement.
5. Copyright Complaints and Copyright Agent – DMCA Provision
Torch respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Services infringe upon your copyrights, please send the following information to Torch’ Copyright Agent at firstname.lastname@example.org;
A description of the copyrighted work that you claim has been infringed, including specific location on the Services where the material you claim is infringing is located. Include enough information to allow Torch to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
We may terminate access, usage or subscription to the Site, as the case may be, for repeat infringers in appropriate circumstances.
12. THIRD PARTY SITES AND LOCATION INFORMATION
1. Third Party Sites
The Service might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Torch and Torch is not responsible for any Third Party Sites. Torch does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
2. Location Information
Location data provided by the Service is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage, or other loss. Neither Torch, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Services, whether provided by Torch, third party content providers, or Users.
Geolocational data that You upload, provide, or post on the Services may be accessible to certain Users of the Services. You assume any and all risk of providing such data to other Users of the Services.
1. Indemnification of Torch
You agree to defend, indemnify and hold Torch (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (i) use of the Service, (ii) User Content, (iii) interaction with any other User, (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) your shipment. Torch reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without Torch’ prior written consent. Torch will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
2. Indemnification of you
By Torch’ separate Terms & Conditions applicable to Carriers, your Carrier agrees to defend, indemnify and hold you (and your officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by the negligence or intentional conduct of the Carrier or its employees or agents.
3. Indemnification of Carrier
You agree to defend, indemnify and hold Carrier (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of its performance of this Agreement, to the extent such damages, claims or losses are caused by your or your employee’ or agents’ negligence or other intentional conduct.
14. CHOICE OF LAW
This Agreement shall be deemed executed in the State of Washington and shall be interpreted, in the event of a dispute arising hereunder, under the laws of Washington without regard to its conflicts of laws provisions. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
15. DISPUTE RESOLUTION
In the event of a dispute arising out of this Agreement related to claims by or against Torch, a party’s recourse shall be exclusively settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration shall be conducted before one arbitrator from the Transportation ADR Council, Inc. (“TAC”). Arbitration proceedings shall be conducted under the rules of the TAC.
Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the TAC. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
Arbitration proceedings shall be conducted in Cook County, Illinois or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in Cook County, Illinois for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
The parties may also proceed in Small Claims Court in Cook County, Illinois to resolve any dispute where reasonably expected damages are less than $5,000. Unless preempted or controlled by federal law and regulations, this agreement shall be interpreted and enforced according to the laws of the State of Illinois.
This paragraph does not apply to claims you may have against Carrier.
16. TERM OF AGREEMENT
This Agreement will remain in full force and effect while you use the Service. Torch may at any time terminate this Agreement in its sole discretion if (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) Torch is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) Torch has elected to discontinue the Service; or (d) for your poor performance as a Shipper in Torch’ sole discretion. Upon termination of this Agreement, your Account and right to access and use the Service will terminate immediately.
17. GENERAL PROVISIONS
1. Changes to Agreement
This Agreement is subject to occasional revision by Torch. In the event of any material changes made to the Agreement, Torch will notify you by electronic mail, or other means of communication, before your next use of the changes on the Service. Any changes to this agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. These changes will be effective immediately for new Users of the Service. Continued use of the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
2. Entire Agreement
This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Torch’ failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Torch’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
All notices as required by any of the terms and conditions of this Agreement shall be deemed given with the notices prepared, adequately addressed, and deposited in the United States mail, postage prepaid. Notices to Torch are adequately addressed as follows:
Torch Logistics, INC
1046 West Kinzie Street
Chicago IL 60642
5. Publication of Information
Torch has your permission to identify you as a customer of Torch or user of our Services and to reproduce your name and logo on the Site and in any other marketing materials.
If you provide Torch any feedback, suggestions, or other information or ideas regarding the Service (“Feedback”), you hereby assign to Torch all rights in the Feedback and agree that Torch has the right to use such Feedback and related information in any manner it deems appropriate. Torch will treat any Feedback you provide as non-confidential and non-proprietary. You agree that you will not submit to Torch any information or ideas that you consider to be confidential or proprietary.
In the event that the operation of any portion of this Agreement results in a violation of any law, or if any provision herein is determined by a court of competent jurisdiction to be invalid or unenforceable, Shipper, Torch and Carrier agree that such portion or provision shall be severable and that the remaining provisions herein shall continue in full force and effect. The terms and conditions set forth herein shall survive the termination of this Agreement.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” TORCH EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. TORCH MAKES NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TORCH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
TORCH’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION SERVICES WITH OTHER USERS, BUT YOU AGREE THAT TORCH HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO THE SERVICES OR ANY TRANSPORTATION SERVICES COORDINATED OR OFFERED OR PURCHASED BY YOU THROUGH THE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. YOU ASSUME ALL LIABILITY AND RISK OF USING THE SERVICES AND COORDINATING AND/OR OFFERING TRANSPORTATION SERVICES.
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE SITE OR THROUGH THE SERVICES OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING UNAUTHORIZED USERS, OR “HACKERS”). TORCH ONLY OFFERS TECHNOLOGY THAT ENABLES CARRIERS TO COORDINATE TRANSPORTATION SERVICES. TORCH IS NOT A CARRIER. WE ARE NOT INVOLVED IN THE ACTUAL TRANSPORTATION OF CARGO. AS A RESULT, WE HAVE NO CONTROL OVER THE QUALITY OR SAFETY OF ANY VEHICLE, CARGO OR OF THE TRANSPORTATION THAT OCCURS AS A RESULT OF THIS SERVICE; NOR DO WE HAVE ANY CONTROL OVER THE TRUTH OR ACCURACY OF USERS’ INFORMATION LISTED ON TORCH. WE RESERVE THE RIGHT TO CHANGE ANY AND ALL CONTENT, SOFTWARE AND OTHER ITEMS USED OR CONTAINED IN THE SERVICES AT ANY TIME WITHOUT NOTICE.
THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. TORCH ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS. TORCH IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY TELEPHONE NETWORK OR SERVICE, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER OR MOBILE PHONE EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER’S OR TO ANY OTHER PERSON’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICES.
8. Limitation of Liability
TORCH SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TORCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TORCH SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY OTHER USER OR ANY THIRD PARTY. TORCH SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TORCH’S REASONABLE CONTROL. IN NO EVENT SHALL TORCH’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500.00).
THE LIMITATIONS AND DISCLAIMER IN SECTIONS 10, 17.7, and 17.8 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
THE ASSUMPTION OF RISK AND LIMITATION OF LIABILITY SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN TORCH AND YOU.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
If you have any questions about this Agreement, please contact Torch at email@example.com