1. Introduction and Agreement
Trucker Path, Inc. (“Trucker Path”), through it’s website www.truckerpath.com (the “Website”), and the Trucker Path application for mobile devices (the “Application”), provides truck drivers (singularly, “Driver” and collectively, “Drivers”), and transportation and other companies seeking to recruit drivers (singularly, “Employer” and collectively, “Employers”), the opportunity to connect in a fast, simple and efficient manner with Trucker Path, to obtain from Drivers and make available to Employers the information Employers need to make recruiting decisions. These Terms and Conditions shall apply to all services and information provided by Trucker Path to a Driver or to an Employer through the Website or the Application, for any of the services as described below in Section 2 or otherwise provided now or in the future by Trucker Path (collectively, the “Services”). By accessing the Website or the Application, you expressly agree that you have read, understood, accept and agree to be bound by all of these Terms and Conditions, as the same may be revised and amended from time to time.
The Services to be provided by Trucker Path may include, but not be limited to (i) advertising on Trucker’s website, any of its apps or in social media, (ii) recruiting, employment and placement services, (iii) marketing services, (iv) access to software and software services, and (v) social media promotion and management.
Certain aspects of the Services require or involve the submission, collection and/or use of certain personally identifying or identifiable information. In particular, and as a part of accessing or using the Services, Trucker Path may collect, access and use certain data pertaining to users including, but not limited to, their name, location, phone number(s), activities or navigation undertaken by users through the Website or Application. You are encouraged to review Privacy Policies on a regular basis for a description of such data collection and use practices.
4. Registration and Subscription
To use the Services and obtain access to certain aspects of the Platform, you must complete a registration and establish an account with Trucker Path. You agree to provide true, correct and accurate information in connection with your registration and account and agree to update such information promptly as necessary to ensure that it is up to date and accurate in all material aspects. You may also have to purchase a subscription package (a “Subscription”) to access many of the Services and other aspects of the Platform, and Trucker Path reserves the right to charge additional fees for certain specific services not included within a particular Subscription package. All Subscriptions, whether offered on a monthly basis or otherwise, shall be prepaid in advance and there shall be no pro-rata refund for any Subscriptions cancelled prior to expiration.
5. Fees for Subscriptions and Other Services
a.Fees. You agree to pay Trucker Path for all Subscription fees and other fees, as such may be adjusted from time to time including, but not limited to, any and all set up fees and costs (collectively, the “Fees”). All Fees shall be paid in U.S. dollars.
b.Payment.All Fees for and all taxes levied upon the Subscriptions and Services shall be payable in advance on a monthly basis and on such date as Trucker Path may designate. You may be required to authorize Trucker Path to collect payment for Fees by charging a credit card you provide or through a designated bank account, and you authorize Trucker Path to make any inquiries Trucker Path may in its discretion consider necessary or appropriate to validate your credit card authorization, designated bank account or financial information.
c.Late Payment.Any Fees that for whatever reason remain unpaid thirty (30) days after the due date shall accrue interest on any outstanding balance from the due date at the rate of eighteen percent (18%) per annum. Trucker Path may also impose a late fee equal to five percent (5%) of any amount that remains unpaid thirty (30) days after the due date. If any outstanding Fees remain unpaid for thirty (30) or more days from the original invoice date, Trucker Path may, without prejudice to any other right or remedy that it may be entitled to exercise, suspend your Subscription, access to the Platform and all Services until such Fees are paid.
d.Chargebacks.Any action you take to request your bank or credit card company to decline, chargeback or otherwise reject the payment of any Fees to Trucker Path (collectively, a “Chargeback”), will constitute a material breach of this Agreement which shall entitle Trucker Path in its sole and absolute discretion to immediately terminate your Subscription, this Agreement, access to the Platform and all Services.
e.Taxes.In addition to the Fees, you shall pay all federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed upon any Subscriptions or Services.
f.Adjustment.Trucker Path may adjust any Fees payable under this Agreement upon giving at least thirty (30) days’ prior written notice to you. Any such Fee modification shall not require an affirmative response from you or any further action by the parties; provided, however, if any such Fee adjustment results in an increase in the Fees that are payable for a specific Subscription or Service, then you may cancel such Subscription or Service by giving Trucker Path written notice of your election to cancel at least five (5) days prior to the effective date of the adjustment. If you do not timely cancel the applicable Subscription or Service, then such Fee increase shall be effective and binding upon you as of the date specified in Trucker Path’s initial notice.
As part of the registration process, you will be required to adopt a password to access the Platform. You will be solely responsible for the password you adopt, and you are encouraged to adopt a strong password that uses upper and lower case letters, numbers and symbols. You should not share the password with any third party or allow any third party to access the Platform. If you become aware that your password or account has been compromised, you should immediately notify Trucker Path at email@example.com.
7. License Granted User
Provided that you are not in breach of this Agreement, Trucker Path grants you a limited, non-exclusive, non-transferable and revocable license to access the Platform to view, download and copy information and content (collectively, “Content”) from the Platform, except as Trucker Path may restrict or block the Content in its sole discretion. You may not reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from the Content or the Platform without the prior written permission of Trucker Path or any third party owner entitled to license the use of such Content.
8. Uploading Content and License Granted Trucker Path
To upload your Content (“User Content”) to the Platform, you must have registered and maintain an account in good standing with Trucker Path. If you are a Driver, your User Content shall include, but not be limited to, your profile and account information, DOT Application and all of the information contained therein and such other information, documentation and records you upload. If you are an Employer, then your User Content shall include, but not be limited to, your profile and account information and such other information, documentation and records you upload related to the employment history of Drivers (the "Employment Records"). If you upload User Content on behalf of an organization, then you represent and warrant that you are a duly elected or appointed representative of the organization with full authority to (i) bind that organization to this Agreement and (ii) upload the User Content to the Platform. If you are an Employer, you agree to provide complete and accurate Employment Records and if you learn that any Employment Records are not complete or accurate, then you must promptly correct such Employment Records so that they are complete and accurate. Upon termination of this Agreement, you authorize Trucker Path to continue to provide reports based on the Employment Records received from you. By uploading User Content to the Platform, you expressly grant Trucker Path a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty free and sub-licensable license to host, transfer, display, perform, reproduce, distribute, compress or convert for distribution, monetize, charge money for, restrict access to view, restrict access to download, advertise against, and otherwise exploit your User Content, in any media formats and through any media channels, in order to publish and promote such User Content in connection with Services offered or to be offered by Trucker Path. Such license will apply to any form, media, or technology now known or hereafter developed. Notwithstanding the foregoing license, if you are a Driver, your DOT Application and the information contained therein will only be available to be accessed, downloaded, and/or viewed by those Employers to whom you have directed Trucker Path to provide such information. You may terminate this grant of license as to any specific User Content at any time by sending written notice to Trucker Path in the manner provided herein, requesting removal, deletion, or revision of the User Content specifically identified in such notice from the Platform.
a.Confidential Information.“Confidential Information” means all information, data, documents, agreements, files, and other materials that is disclosed to either party (the “Receiving Party”) by the other party (the “Disclosing Party”) or its representatives at any time concerning the Disclosing Party; that the Disclosing Party has designated as confidential and/or proprietary or that should reasonably be understood, based on the nature of the information and/or the circumstances surrounding the information’s disclosure, to be confidential and/or proprietary.
b.Non-Disclosure.Receiving Party shall maintain the confidentiality of the Confidential Information and shall not disclose the Confidential Information for any purpose other than those contemplated by this Agreement including the provision and use of the Services. Receiving Party may disclose Confidential Information to its principals, officers, directors and employees who need to know such information to carry out their duties to Receiving Party. Receiving Party may also disclose Confidential Information to agents, attorneys, accountants, advisors, consultants, representatives, independent contractors or any other person acting for or on behalf of Receiving Party, who need to know such information in order to carry out their duties to Receiving Party (“Representatives”); provided, however, that prior to being furnished with any Confidential Information, such Representatives shall (i) be furnished with a copy of the confidentiality provisions of this Agreement and (ii) be required to certify in writing that they have reviewed such confidentiality provisions and have consented to be bound by their terms. Receiving Party shall provide Disclosing Party copies of each such written certification. Receiving Party may also disclose Confidential Information that is required to be disclosed by (i) a government agency, (ii) court order, or (iii) by law, provided that Receiving Party shall notify the governmental agency, court or other authority that such information is confidential and promptly provide notice to Disclosing Party of the required disclosure so that Disclosing Party may take such action as it deems appropriate, including seeking a protective order or an injunction to prevent such disclosure.
c.Scope of Obligation of Confidentiality.The obligations of confidentiality and restrictions on use of Confidential Information set forth herein shall not apply to any Confidential Information that: (i) is available to the public as of the date of this Agreement; (ii) becomes publicly available through no fault of Receiving Party, its principals, officers, directors, employees and Representatives; (iii) is already lawfully known to Receiving Party at the time of its receipt; or (iv) is available to Receiving Party from a third party who, to Receiving Party’s knowledge, is not under an obligation of confidence with respect to such information.
d.Return or Destruction of Confidential Information.Within ten (10) business days of written request from a Disclosing Party, Receiving Party shall: (i) promptly return to Disclosing Party or destroy all copies of Disclosing Party’s Confidential Information in Receiving Party’s possession; and (ii) certify to Disclosing Party that all Confidential Information in the possession of Receiving Party and its Representatives has been returned or destroyed. Notwithstanding the foregoing, Receiving Party may retain copies of Confidential Information in an archived computer system backup in accordance with applicable laws, regulations and Receiving Party’s internal policies to the extent that such retention is necessary, in the opinion of Receiving Party, to (i) comply with applicable law, or (ii) enforce its rights under this Agreement.
All employment contracts and arrangements are entered into exclusively between a Driver and an Employer. You acknowledge and agree that Trucker Path is not a party to nor will it have any duty, obligation, responsibility or liability of any kind or nature whatsoever with respect to any employment contracts or arrangements. You further understand that Trucker Path does not endorse, recommend or vouch for the reputation, competence, or credibility of any Driver or Employer.
11. Ownership of Proprietary Material and License
a.Trucker Path Proprietary Material.As between the parties, Trucker Path owns all right, title and interest in and to the following (collectively, the “Trucker Path Proprietary Material”): (i) the Services, whether owned by Trucker Path or provided through a contract or license with a third party; (ii) all Intellectual Property Rights (as defined below) in the Services and all software, technology, materials, and documentation relating to the provision of the Services; (iii) the style and design of any material developed in connection with the Services whether by Trucker Path or by a third party; (iv) all text, audio, photo, video or other creative works, whether in print or electronic form developed in connection with the Services whether by Trucker Path or by a third party; and (v) all derivative works and enhancements to any of the foregoing. You shall not acquire any right, title or interest in the Trucker Path Proprietary Material except for the limited use rights expressly granted to you under this Agreement, and you shall not take any action that might impair, limit or interfere in any manner with Trucker Path’s ownership of or rights to any Trucker Path Proprietary Material. Except as expressly permitted in this Agreement, you shall not use, reproduce, transfer, share, sell, loan, sublicense or transmit any Trucker Path Proprietary Material in any form or by any means without the prior written consent of Trucker Path.
b.Your Proprietary Material.As between the parties, you own all right, title and interest in and to the following (collectively, the “User Proprietary Material”): (i) the User Content, (ii) all Intellectual Property Rights (as defined below) in the User Content, and (iii) all software, technology, materials, and documentation relating to the User Content. You hereby grant Trucker Path a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sub-licensable right and license to use the User Content, in whole or in part, worldwide, in order to provide you with the Services and as otherwise provided in this Agreement.
c.Intellectual Property Rights.For purposes of this Agreement, “Intellectual Property Rights” shall mean any and all rights existing from time to time under copyright law, patent law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect throughout the world.
12. Digital Millennium Copyright Act.
a.DMCA Notification.Trucker Path respects the Intellectual Property Rights of others and acts in accordance with our interpretation of the Digital Millennium Copyright Act, 17 U.S.C. § 512, as amended ("DMCA"). If you have an Intellectual Property Rights related complaint about material posted on the Platform, you may contact Trucker Path’s Designated Copyright Agent at the following address:
2828 North Central Ave., 7th Floor
Phoenix, AZ 85004
b.Notice of Infringement.Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right that allegedly has been infringed;
(ii) a description of the copyright-protected work or other intellectual property right that allegedly has been infringed;
(iii) a description of the material that you claim is infringing and where it is located on the Platform;
(iv) the address, telephone number, and email address of the party alleging the infringement;
(v) a statement by the party alleging the infringement that such party has a good faith belief that the use of those materials on the Platform is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by the party alleging the infringement that the information contained in the notice is accurate and that under penalty of perjury such party is the copyright or intellectual property owner or is authorized to act on the copyright or intellectual property owner's behalf.
c.Repeat Infringers.Trucker Path may promptly terminate without notice the accounts of users that are determined by Trucker Path to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Platform on more than one occasion.
13. NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM, INCLUDING YOUR RELIANCE ON ANY ANNOUNCEMENT THAT IS TRANSMITTED OR RECEIVED ON OR THROUGH THE PLATFORM, IS AT YOUR SOLE RISK. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, INCLUDING ALL SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM, ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND TRUCKER PATH HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TRUCKER PATH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PLATFORM; THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PLATFORM WILL MEET YOUR REQUIREMENTS; THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. BUT IN SUCH A CASE, THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
14. LIMITATIONS ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER TRUCKER PATH NOR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AFFILIATES AND/OR AGENTS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RESULTING FROM: (I) ERRORS, MISTAKES, OR INACCURACIES OF OR IN ANY INFORMATION ON THE PLATFORM; (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO YOUR USE OF THE SERVICES; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE SERVICES; AND/OR (IV) EVENTS BEYOND TRUCKER PATH’S REASONABLE CONTROL, INCLUDING ANY INTERNET FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EARTHQUAKES, EXPLOSIONS, ACTS OF GOD, WAR, TERRORISM, GOVERNMENTAL ACTIONS, ORDERS OF COURTS, AGENCIES OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PROVISION OF THE SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL TRUCKER PATH HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HEREUNDER OR ANY OF THE SERVICES. FURTHERMORE, TRUCKER PATH SHALL HAVE NO LIABILITY FOR ANY LOST PROFITS OR REVENUE INCLUDING, BUT NOT LIMITED TO, ANY LOSSES INCURRED AS THE RESULT OF THE LOSS OF USE OF ANY OF THE SERVICES, LOSS OF ANY DATA FROM ANY CAUSE, BUSINESS INTERRUPTION OR OTHER SIMILAR LOSSES. TRUCKER PATH’S TOTAL LIABILITY FOR ALL CLAIMS OF EVERY KIND AND NATURE WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF THE MANNER IN WHICH THE CLAIMS ARE ASSERTED, INCLUDING BUT NOT LIMITED TO, ANY CLASS ACTION, SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL FEES YOU HAVE PAID DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE ASSERTION OF SUCH CLAIMS.
You will indemnify, defend and hold Trucker Path, its affiliated entities and their respective members, managers, officers, directors, employees, agents, contractors, attorneys, representatives, successors and assigns (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, costs, liabilities or expenses including, without limitation, attorneys’ and experts’ fees and costs incurred in connection with any judicial or non-judicial third-party claim, demand or action (each, a “Claim”) arising out of or allegedly arising out of (i) your use of the Services, (ii) your breach of this Agreement, (iii) User Proprietary Material submitted to Trucker Path for use in providing the Services, including, but not limited to, any claim that the use of your Proprietary Material infringes upon or violates any Intellectual Property Right of any third party or is inaccurate or misleading in any respect, (iv) your negligence or willful misconduct, or (v) your violation of or failure to comply with any applicable law, regulation or government agency guideline, including without limitation, any federal or state privacy or consumer protection laws, demanding compensation or benefits, or pursuing any employment-related Claim, by any of your employees or contractors. Trucker Path may, but shall not be obligated to, participate in the defense of any Claim. You will not settle any Claim against an Indemnified Party without Trucker Path’s prior written consent. In the event of a Claim against an Indemnified Party, Trucker Path may terminate this Agreement, or any registration, account or Subscription without any liability of any kind or nature whatsoever. All Claims and disputes arising under or relating to this Agreement are to be determined by binding arbitration in the State of Arizona in accordance with the rules of the American Arbitration Association. Any arbitration award may be confirmed by an Arizona court of competent jurisdiction. In no event shall the total liability of Trucker Path to you for all damages, losses, and causes of action arising from this Agreement exceed the sum of all payments made to Trucker Path for Services as defined in this Agreement.
b.Headings.Titles and section headings in this Agreement are for the purpose of reference, are inserted for convenience only and shall in no way limit, define, or otherwise affect the provisions of this Agreement.
c.Independent Contractors.The relationship between you and Trucker Path is that of independent contractors. Neither you, on one hand, nor Trucker Path, on the other hand, has or will have any power to bind the other or to create any obligation on behalf of the other, nor shall either represent that it has any such power.
d.No Representations or Warranties.Other than as specifically set forth herein, there are no other representations, agreements, arrangements, or other understandings, oral or written, between you and Trucker Path with respect to the subject matter of this Agreement. Additional terms and conditions to this Agreement will not be valid or enforceable unless approved in writing by both you and Trucker Path.
e.No Waiver.The failure by either you or Trucker Path to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, or prevent you or Trucker Path from thereafter enforcing that provision or provisions and every other provision of this Agreement.
f.Severability.f.The provisions of this Agreement are severable, and if any one or more provisions are determined by a court of competent jurisdiction to be unenforceable, in whole or in part, then the remaining provisions shall nevertheless be binding and enforceable.
g.Binding Effect.Except as otherwise provided herein, this Agreement is binding upon and inures to the benefit of you and Trucker Path and, as applicable, the heirs, devisees, executors, administrators, legal representatives, successors in interest and assigns of you and Trucker Path.
h.Notices.All notices and other communications required or permitted to be sent under this Agreement shall be in writing and sent to: (i) you at the address specified in your registration as the same may be amended from time to time and (ii) Trucker Path to the Trucker Path at the address specified at the end of this Agreement. Notice shall be deemed effective upon: (i) receipt when delivered personally, (ii) written verification of receipt from overnight courier, (iii) verification of receipt of registered or certified mail, or (iv) verification of receipt via email.
i.Governing Law.This Agreement shall be governed by, and construed in accordance with, the laws of the State of Arizona.
j.Dispute Resolution.You and Trucker Path shall use best efforts to resolve any and all Claims and disputes arising under this Agreement, first through good faith negotiations and without initially resorting to litigation or other similar proceedings; provided, however, that either you or Trucker Path shall be entitled to: (i) seek injunctive relief in any court of competent jurisdiction to avoid irreparable harm for breach of this Agreement; or (ii) commence litigation in the venue set forth below to avoid a Claim being barred by an applicable statute of limitations, without first attempting to resolve such Claim or dispute through good faith negotiations or mediation. If you and Trucker Path are unable to resolve any Claim or dispute via good faith negotiations, then you and Trucker Path shall, prior to commencement of any legal action or suit, participate in nonbinding mediation proceedings with a mediator chosen jointly by you and Trucker Path and with the costs of mediation divided equally between you and Trucker Path. Should mediation not result in a mutually acceptable agreement and resolution of the Claim, then the claiming party shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, to obtain damages for breach of this Agreement. Notwithstanding the foregoing, neither party shall be prevented from seeking an injunction at any time.
k.Venue.With respect to any dispute involving this Agreement, venue shall lie exclusively in either (i) the United States District Court for the State of Arizona sitting in Phoenix or (ii) the Superior Court of Maricopa County, Arizona sitting in downtown Phoenix.
l.WAIVER OF JURY TRIAL.YOU AND TRUCKER PATH EACH WAIVES, IRREVOCABLY AND UNCONDITIONALLY, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF, OR RELATING IN ANY WAY TO THIS AGREEMENT, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING TO THIS AGREEMENT OR TO ANY OF THE FOREGOING.
m.Attorney’s Fees.If any legal action arises under this Agreement or by reason of any asserted breach of it, then the prevailing party in such action shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees incurred in such action. The amount of attorneys’ fees shall be determined by the court sitting without a jury.
n.Section Headings.n.Section headings in this Agreement are for convenience only and will not have any impact on the interpretation of any provision. If any provision of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
o.Governing Law.This Agreement shall be governed by, and construed in accordance with, the laws of the State of Arizona.
p.Amendment.This Agreement may not be amended or otherwise modified except as expressly provided herein. If at any time Trucker Path updates any of the terms and conditions contained herein, then as a condition to any renewal term, you may be required to agree to such updated terms and conditions. In addition, Trucker Path may, at any time and from time to time during the term of this Agreement, propose amendments or modifications to the terms and conditions by delivering to you written notice of Trucker Path’s proposed amendment or modification, which notice shall specifically identify the provisions of this Agreement that are being amended. If you fail to object to such amendment or modification by delivering to Trucker Path written notice of your objection within thirty (30) days after Trucker Path delivers notice of the proposed amendment or modification to you, then such amendment or modification will be deemed accepted and agreed to by you and this Agreement and the affected terms and conditions shall be automatically amended to include such amendment or modification without any further action by the parties. If you validly and timely object to the proposed amendment or modification, then you and Trucker Path shall act in good faith to negotiate a mutually acceptable amendment or modification.
q.Assignment.This Agreement is and shall be freely assignable by Trucker Path. You shall not assign or otherwise transfer this Agreement or any of its rights or obligations thereunder to any other person or entity without the prior written consent of Trucker Path.
r.Third Party Beneficiaries.This Agreement is not intended to benefit any third party and neither you nor Trucker Path intend to vest any rights in any third parties under this Agreement, except that each Indemnified Party shall be a third party beneficiary and shall be permitted to enforce its rights as such under this Agreement.
s.Force Majeure.The performance by Trucker Path of its obligations under this Agreement shall be excused by any cause or circumstance beyond Trucker Path’s reasonable control including, but not limited to, acts of God or nature, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, shortages in fuel, transportation facilities or materials, or failures of equipment, internet, telecommunications facilities or third party software programs.