Last Updated: 04/11/2023
WARNING: DO NOT ACCESS OR USE ATS FREIGHTMATCH WHILE DRIVING. FEDERAL REGULATIONS PROHIBIT THE USE OF HAND-HELD TELEPHONES WHILE OPERATING COMMERCIAL MOTOR VEHICLES.
This End User License Agreement (“Agreement”) governs use of the ATS FreightMatch mobile application (“App” or “Application”). This Agreement is between you (“You”), all persons and entities You purport to represent in connection with Your use of the Application (whether expressly or by conduct), and ATS Logistics Services, Inc. (“ATS”).
Please read this Agreement carefully. The download, installation, and usage of the Application is entirely voluntary and is not a requirement of doing business with ATS. By choosing to install and use the Application, You agree on behalf of Yourself and all persons and entities You purport to represent to be bound by this Agreement. If You do not agree with the terms and conditions of this Agreement, You may not use the Application. Each time You use the Application, You signify and reaffirm Your intent to be bound by this Agreement. Do not use the Application until You have read, understood, and agreed to all of the terms and conditions contained in this Agreement.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION WHERE YOU AND ATS AGREE TO SETTLE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION INSTEAD OF THROUGH LITIGATION IN COURT. THIS AGREEMENT ALSO CONTAINS LIMITATIONS OF LIABILITY THAT AFFECT YOUR RIGHTS TO RECOVER DAMAGES AGAINST ATS. THESE ARE IMPORTANT LEGAL PROVISIONS. PLEASE READ THIS AGREEMENT CAREFULLY AND DO NOT CONTINUE IF YOU DO NOT UNDERSTAND OR AGREE TO ITS TERMS.
By using this Application, You represent and warrant that:
If You cannot or do not agree to make the foregoing representations and warranties, You may not use the Application.
The Application is licensed, not sold. You do not own, in part or in whole, the Application. Subject to Your compliance with the Agreement, ATS grants You a limited, personal, revocable, non-exclusive, non-transferable license to: (i) download or otherwise copy the Application or its content on Your wireless device, and (ii) access and/or use the Application (in object code form only) on such wireless device in order to access and use the Application as made available and permitted by ATS in its sole and absolute discretion.
You agree to comply with all applicable laws, rules, and regulations in connection with Your access and use of the Application. The Application may not be used while operating a vehicle. ATS is not liable due to any claim arising from Your use of the Application while operating a vehicle. In addition, You may not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Application.
ATS has and retains all copyrights in the Application. Except as expressly provided herein, nothing in the Application may be copied, distributed, republished, reproduced, downloaded, displayed or transmitted in any form without express written permission from ATS. Any trademarks, logos, service marks, brand identities, titles, characters, graphics, designs, and/or other properties displayed on the Application are the property of ATS or of applicable third-parties and are protected as registered and unregistered trademarks and copyrights, and You may not use them without the express written permission from the owner. Any misuse of intellectual property is strictly prohibited.
You will not submit to ATS any feedback or suggestions regarding the Application that You consider to be proprietary. If You choose to provide ATS any feedback or suggestions regarding the Application, then You agree that ATS may use such feedback or suggestions in any manner it deems appropriate, and You assign all rights in any such feedback or suggestions to ATS.
ATS makes no representations or warranties, express or implied, concerning the Application or its availability. Application descriptions are not guarantees. The Application may be modified, disrupted, or discontinued at any time. ATS assumes no liability for software or hardware defects, environmental conditions, wrong operation, flawed data, reliability, accuracy and correctness of information, or other conditions or circumstances. ATS reserves the right, at any time, to modify, suspend, or discontinue the Application or any part of the Application with or without notice, in whole and/or in part, in its sole discretion, at any time, and for any reason. You agree that ATS will not be liable to You or any other third-party for any modification, suspension, or discontinuation of any part of the Application. Certain functions of the Application require an active internet connection, and ATS assumes no responsibility or liability for the Application not working as a result of inadequate internet connections.
You may only perform transportation arranged through the Application if You are subject to a current and active broker-carrier agreement with ATS (such agreement, a “BCA”). The terms of any such BCA supplement this Agreement and are incorporated into this Agreement by reference. To the extent of any conflict between a BCA and this Agreement, the BCA will control. This Agreement does not modify any requirements in the BCA, any load tender, or any shipper instructions, and any use of the Application must be done in compliance with any requirements of the BCA and any applicable load tender terms and shipper instructions.
Through the Application, You will have access to information about shipments that may be available for transportation. Certain items of such load information may be provided by third parties. Although ATS will endeavor to keep the Application updated and correct, the Application does rely on third parties and third-party services to function, and ATS cannot guarantee the accuracy of such services or any third-party information. Load information is not monitored or checked in each case for accuracy and it is up to You to ensure the accuracy of information. ATS accepts no liability for any loss, direct or indirect, You experience as a result of relying wholly on the functionality of the Application or on any third-party services or information. ATS provides no warranties, express or implied, that load information will be free of errors. You are responsible for confirming Load Information and any load bookings with ATS. Any routes suggested or proposed by the Application or Your mobile device are informational suggestions only and You are not required to follow them.
You understand that ATS is a freight broker only and that it exercises no supervision or control over You or Your operations. You are solely responsible for the manner and means of providing any transportation arranged through use of the Application. Any services You may perform are pursuant to contract only and neither You nor any person or entity You represent are the agent, representative, employee, servant, partner, joint venture, or franchisee of or with ATS.
ATS is not responsible or liable for Your mobile phone or mobile network. Your mobile phone carrier’s normal rates and fees, including but not limited to, text messaging and data charges, will still apply.
Your use of the Application is an acknowledgment that You understand and are required to abide by all applicable law when using the Application, including, but not limited to, 49 C.F.R . § 392.82, which states generally that no driver shall use a hand-held mobile telephone while driving a commercial motor vehicle, even if temporarily stationary because of traffic, a traffic control device, or other momentary delays. You understand that the foregoing is a general statement and is not legal advice, and that You are responsible for understanding and complying with the full actual text and application of all applicable laws and regulations at all times while using the Application and while performing services in connection with the Application.
The Application may request or collect certain limited information about You when use the Application. Such information includes, but is not limited to, Your email address, cell phone number, location, and device information, including, but not limited to, technical information about Your device, system, and application software (collectively, “Information”). You agree that any Information You provide through the Application will be true, accurate, current, and complete. The Application may also collect information regarding what content You send through the Application and whom You send it to (“Transmission Data”). The Application may also use cookies, other passive or active tracking mechanisms, and tools to collect information in order to facilitate Your use of the Application. Furthermore, ATS may collect aggregated non-personal data from all users of the Application relating to, for example, the number of transactions processed through the Application (“Aggregate Data”). ATS will only use the Aggregate Data to assess the overall use of the Application by users in order to determine how the Application is being used and how it and other products and services can be improved.
ATS may share Information, Transmission Data, and Aggregate Data with third party business partners who assist ATS in providing its services. For example, as part of Your use of the Application, ATS may request or collect certain information regarding Your location. This location information may be used for shipment pickup and delivery estimates as well as to provide assistance with pickup and delivery locations. You have the option to enable and disable location tracking through Your device settings while You have the Application downloaded, but if location tracking is disabled, certain aspects and/or functionalities of the Application may be disabled or unusable. If transportation is arranged through use of the Application, then ATS will share Information and Transmission Data between You and other third-parties to facilitate such transportation. For convenience, ATS may also offer links to or integrate certain offerings with third-party service providers, in which case applicable third-party terms and policies apply. ATS does not endorse, review, approve, monitor, warrant, or make any representations with respect to third-party services. Furthermore, ATS may share Information, Transmission Data, and Aggregate Data if ATS believes doing so is necessary to comply with any court or governmental orders or directives, legal proceedings, any other legal requirements or orders, or if ATS believes it is otherwise necessary to protect ATS’s rights or property interests. For more information, please review our Privacy Policy at https://www.atsinc.com/privacy-policy, which applies to Your use of the Application as well as to all ATS services that make reference to such Privacy Policy.
ATS has the right to monitor Your activity on the Application and the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone accessing or using the Application. Although ATS has the right to monitor Your activity on the Application, ATS does not review all activities and information and assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.
You are responsible for maintaining the security of information such as Your user identification and passwords. You must treat Your user identification and passwords as confidential and must not disclose it to any other person or entity. You or the entity you represent (whichever is the motor carrier, the “Carrier”) is responsible for each individual assigned to an administrative role, a dispatcher role, a driver role, or any combination of the foregoing in connection with the use of the Application (each, a “Representative”). Carrier is responsible for validating that each Representative is qualified to use the Application in full compliance with this Agreement and for maintaining the access and usage rights of all Representatives. Carrier agrees to periodically validate and update users with access to the Application and to remove user access for any user that is not or that is no longer a Representative. Carrier assumes all risks that may arise from any failure by it to maintain and update user access and usage rights associated with Carrier’s account, including without limitation any risks of loss from double-brokering or cargo theft. Carrier expressly agrees to be fully liable for the use of the Application by any current or former Representative or user of the Application in connection with Carrier’s account, even if such Representative or user is not or is no longer associated with Carrier, and Carrier agrees to indemnify, defend, and hold ATS harmless for all claims, losses, liabilities, damages, and expenses (including special, indirect, and consequential damages, together with reasonable attorneys’ fees) relating to or arising out of the use of the Application by Carrier, any current or former Representative of Carrier, or any other user of Carrier’s account.
You expressly acknowledge and agree that use of the Application is at Your sole risk. ATS will not have any liability for any claims, losses, damages, costs, or expenses attributable to any failure to conform, if any.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ATS DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ATS DOES NOT WARRANT (A) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, (B) THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, (C) THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR (D) THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ATS, OR ITS AUTHORIZED REPRESENTATIVES, WILL CREATE A WARRANTY.
The Application may contain links to third-party web sites or services that are not owned or controlled by ATS. ATS has no control over, and assumes no responsibility or liability for, the content, privacy policies, or practices of any third-party web sites or services. You acknowledge and agree that ATS will not be responsible or liable, directly or indirectly, for any damage or loss caused by or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party web sites or services.
Without limiting the foregoing, and to the fullest extent possible under applicable laws, ATS shall not be liable to You for any loss or damages of any kind (including, without limitation, for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages) that are directly or indirectly related to: (a) the Application or its content; (b) user content; (c) Your use of, inability to use, or the performance of the Application; (d) any action taken in connection with an investigation by ATS or law enforcement authorities regarding Your or any other party's use of the Application; (e) any action taken in connection with copyright or other intellectual property owners; (f) any errors or omissions in the Application’s operation; (g) any damage to any user's computer, mobile device, or other equipment or technology, including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure, or any other technical or other malfunction; or (h) damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if foreseeable or even if ATS has been advised of or should have known of the possibility of such damages, and whether or not in an action of contract, negligence, strict liability, or tort (including, without limitation, whether caused in whole or in part by negligence, acts of God, telecommunications failure, or theft or destruction).In no event will the liability of ATS exceed a maximum of the higher of $50.00 or the total charges You paid to ATS for use of the Application over the twelve-month period immediately preceding the occurrence giving rise to such liability (if any). The limitations of liability and waivers in this section apply to the benefit of ATS, all entities affiliated with or under common control as ATS, and all of its and their employees, officers, and directors.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Each party agrees that any and all disputes arising under or related in any way to this Agreement, Your use of the Application, Your provision of services, or Your relationship with ATS must be resolved through binding individual arbitration as described in this section. This agreement to arbitrate is intended to cover all disputes between You, any entity You represent, and any agent, representative, or employee of You or any entity You represent, and ATS, its parents and affiliates, and its and their subsidiaries, divisions, clients, customers, agents, representatives, and employees. This agreement to arbitrate is intended to be interpreted broadly and includes, but is not limited to, all claims and disputes relating to Your use of any of the Application. The parties intend that the arbitrator shall have exclusive authority to resolve any dispute relating to the formation, enforceability, applicability, or interpretation of this Agreement as a whole as well as of this Section 11 agreement to arbitrate.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND ATS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND ATS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The parties hereby agree and stipulate that this Agreement and actions to enforce it, compel arbitration, or enforce, modify, or vacate an arbitrator's award shall be covered and governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; provided, however, that if for any reason the FAA is held to not apply or to not allow individual arbitration of a given claim, then such claims and actions shall be covered and governed by the Minnesota Uniform Arbitration Act (Chapter 572B), with it being the express intent of the parties to allow for individual arbitration to the maximum extent possible (whether such arbitration be conducted under federal law or under state law). The arbitration will further be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, You and ATS agree that the arbitration may be conducted solely based on written submissions. Any hearing (if any) may take place remotely or, if in person, in Stearns County, MN.
Either party may ask a court to stay any court proceeding to compel arbitration under this Agreement and to confirm, vacate, or enforce any arbitration award issued hereunder. Both parties agree to be fully and finally bound by any arbitration award, and, where allowed by law, judgment may be entered on the award in any court of competent jurisdiction. The parties shall share the cost of arbitration equally; provided, however, that if You cannot pay Your share of arbitration costs on account of financial hardship, then You may submit a written request for a cost waiver, together with such supporting documentation as ATS may reasonably request, and ATS may in its discretion pay or defer all or part of the arbitration costs that would otherwise be incurred by You. In the event that ATS declines to pay Your costs of arbitration despite such request, You may further request that the arbitrator determine whether Your costs should be waived due to Your showing of reasonable need, and if the arbitrator so determines, then ATS shall pay Your costs of arbitration to the extent of such determination. The arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party to the same extent a court would be entitled to do so, all in accordance with applicable law.
The parties agree that no dispute may be joined with the dispute of another. The parties agree that class actions are prohibited; that they will not assert class or collectively claims against the other in court, in arbitration, or otherwise; that they shall only submit their own individual claims in arbitration; that they will not seek to represent the interests of any other person or entity in arbitration; and that their claims will not be joined, consolidated, or heard together with the claims of any others. Except as may be required by law, neither party nor the arbitrator(s) may disclose the existence, content, or results of any arbitration without the prior written consent of both parties (unless as may be required to protect or pursue a legal right), and the parties hereby agree to instruct any applicable arbitrator(s) to act in accordance with these terms. Except to the extent required by law or by the terms of this Agreement, the parties agree (and shall instruct any applicable arbitrator(s) accordingly) that the arbitrators will have no authority to award punitive or consequential damages. The parties agree all issues of arbitrability and of the interpretation, applicability, formation, or enforceability of this Agreement, will be exclusively decided by the arbitrator. Any decision by the arbitrator will be final and binding only on the parties to this Agreement. No arbitration decisions from other arbitrations will have preclusive effect on any arbitration between the parties.
This Agreement is the entire agreement between You and ATS regarding the Application. Either party’s 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. 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. Your relationship to ATS is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement may only be modified in writing and may not be modified orally or by conduct. This Agreement, and Your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by You without ATS’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be void. The terms of this Agreement shall be binding upon assignees. This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the State of Minnesota and, in the event of any disagreement or litigation, the laws of Minnesota shall apply. Each party represents that it has been given the opportunity to fully review the terms of this Agreement with counsel of its own choosing, and each party agrees that each provision of this Agreement should be construed without regard to any presumption or other rule or principle requiring construction against the drafter thereof. Each party represents that it understand the terms of this Agreement and is freely and voluntarily signing and agreeing to be bound by the same. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Sterns County, Minnesota. This Agreement shall be governed by the FAA where applicable to enforce arbitration and will otherwise be construed solely and exclusively in accordance with the laws of the State of Minnesota without giving effect to any law that would result in the application of the law of another jurisdiction.
This Agreement may be amended by ATS from time to time. Any such amendments take effect 30 days after the date of posting, which is reflected in the “Last Updated” field displayed near the start of this Agreement. Amendments do not affect rights and obligations arising before the effective date of such amendments. Prior versions of this Agreement are available on request. You agree to review the terms of this Agreement on a regular basis and to be bound by the current terms of this Agreement in effect at the time You use the Application. Each time You use the Application, You signify and reaffirm Your intent to be bound by the terms of such Agreement in effect at the time of such use.
ATS reserves the right to terminate Your access to the Application at any time for any reason or no reason and without notice to You. ATS also reserves the right to suspend, discontinue, enhance, update, or otherwise modify the Application at any time without notice. Your continued use of the Application thereafter shall constitute Your acceptance of such modifications.