Baton Terms and Conditions
Baton Trucking, Inc.
391 Grove Street, San Francisco, CA 94102
TRANSPORTATION TERMS AND CONDITIONS
This agreement consists of the terms and conditions (“Terms and Conditions”) between the customer (“Customer”) and Baton Trucking Inc. (“Baton”) which is a transportation property broker registered with the Federal Motor Carrier Safety Administration (the “FMCSA”), docket number MC 01071247 and USDOT Number 3350800. Customer understands that Baton is not a motor-carrier, rail carrier, freight forwarder, ocean carrier or any other type of third-party transportation provider (collectively, “Carriers”); Baton contracts with such third-party Carriers on Customer’s behalf for the purpose of arranging transportation of Customer’s goods and Baton may also contract with third-party parking facilities on Customer’s behalf to further Baton’s logistics services provided to Customer (collectively, “Services”).
A. Agreements and Shipping Documents.
Baton will arrange for transportation by contracting with Carriers on the Customer’s behalf. Baton may also arrange for parking locations on Customer’s behalf. Contract with Carriers and with parking facilities are applicable to Customer’s shipment and may be documents such as parking terms and conditions, bills of ladings (“BOL”), rail transportation agreements, tariffs, circulars, rules and other such publications in effect at the time of the shipment (collectively, “Shipping Documents”). Customer is responsible for requesting the Shipping Documents from Baton and reviewing the documents. Baton is not obligated to provide to Customer copies of Shipping Documents, or any information contained therein. The Terms and Conditions govern the relationship between Baton and Customer and shall not be amended or altered by any Shipping Documents.
The terms of Shipping Documents will be subordinate to the provisions of these Terms and Conditions and any written agreement signed by Customer and Baton. Any change or notation made on the Shipping Documents that is in any way inconsistent with the provisions of these Terms and Conditions and any applicable written agreement that signed by Baton will be considered as a notation made for the private benefit and information of the consignor or consignee and will not be binding on Baton.
Shipping documents also include any documents tendered with a shipment, such as BOLs issued by the Carrier, Baton, Customer or Shipper; such Shipping Documents will still serve solely as a receipt indicating transfer of the shipment (but will not constitute Baton’s transportation provider’s verification of the nature, condition, number or volume of the shipment’s contents). Any such documents that identifies Baton as the carrier will not change Baton’s relationship with or obligations to Customer or the nature of Baton’s role in arranging for transportation services as a transportation broker.
B. Customer’s Warranties and Representations.
Baton may modify these Terms and Conditions at any time and for that reason, Customer warrants it will periodically review these Terms and Conditions for compliance. Customer represents and warrants that Customer will comply with all laws, rules and industry standard practices that are applicable to Customer’s shipments. Customer agrees to furnish any necessary information and documents that are necessary to comply with such laws. Baton assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall defend, indemnify and hold Baton harmless for any claims or damages resulting from violation of this paragraph, including attorney’s fees and costs.
Unless agreed otherwise in a written agreement signed by Baton’s authorized representative and subject to Baton’s credit approval, payment will be due within thirty (30) days of invoice date. If an invoice is not paid on or before the due date, such invoice will be subject to a late charge from the date payable until payment in full at 1.5% per month, or such lesser amount as may represent the maximum rate permitted by applicable law. If Baton is required to utilize the services of a collection agency or attorneys to collect any amounts due, Customer will be responsible for reasonable collection costs, attorney fees, court costs and other reasonable expenses incurred in collecting amounts owed. Baton may apply additional charges and late fees at its discretion. Baton shall also use its discretion on how to apply funds paid to Baton (e.g. payment may apply to oldest or most recent invoice(s)). Overpayments do not accrue interest and may be refunded or credited to future charges against Customer’s account in Baton’s sole discretion.
When Baton pays a service provider (such as the Carrier or parking facility) for transportation services that were arranged on Customer’s behalf, Customer recognizes that Baton receives and reserves the service provider’s legal rights to collect payment from Customer and any other third-party entities (such as those who signed the applicable BOL); Baton also receives any and all rights to that service provider’s legal rights regarding liens against Customers goods for unpaid freight charges. Customer waives any defenses it may have pursuant to any agreement Baton and the Carrier with regards to unpaid freight charges.
Customer shall not withhold payment as a setoff because of a dispute or claim with Baton, Carriers, or parking facilities including claims for overcharge, duplicate payment or other invoice-related disputes or for claims of loss, damage or delay of freight or equipment.
Baton may grant credit to Customer which such credit shall be governed by these Terms and Conditions. Customer agrees to undergo a credit review and background search. Baton reserves the right to deny credit to Customer at any time for any reason. When paying by credit card or electronic funds, Customer will be responsible for all charges due and owing, including any adjustments on account or Customer’s shipment. The Customer authorizes Baton to charge Customer’s credit card or bank account for any charges. If Customer breaches (including anticipatory breach) any payment terms, Baton may alter the payment and credit terms and Baton’s discretion.
D. Liability and Disclaimer of Warranties
BATON SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, LIABILITY, OR DAMAGE UNLESS PROXIMATELY CAUSED BY BATON’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT, SHALL BATON, OR ITS THIRD-PARTY CARRIERS OR PARKING FACILITIES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN.
Customer acknowledges that in order to provide competitive rates for the services, the Parties have agreed as a material term of this Agreement that Baton’s liability—if any—shall be limited to the fees that Baton has earned with respect to the subject shipment.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BATON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, GOODS IN TRANSIT, DELIVERY STATUS, CONDITION OF GOODS, CONDITION OF EQUIPMENT, DAMAGE TO EQUIPMENT OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. BATON CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE.
Customer acknowledges the following: (i) that Baton is a property broker, not a motor-carrier which means that Baton arranges for transportation, but does not transport the goods; (ii) Baton will confirm the FMCSA authority and insurance of the selected Carrier, but Baton does not guarantee that either will exist at the time of transport; (iii) Customer’s dispute(s) arising from the transportation of the goods shall be with the Carrier, not Baton; (iv) Customer must purchase broad form cargo insurance for the transportation of goods as Customer understands that Carriers may have limitations of liability or insurance coverage gaps; and (v) there are risks to the Customer’s business that are associated with transporting goods and Customer understands and accepts such risk; for example, accidents, cargo loss, damage, and delay.
E. Rates, Charges and Fees.
Customer shall be liable for all charges related to or arising from Customer’s shipment; such charges may include- but are not limited to- transportation, fuel, accessorials, duties, customs assessments, governmental penalties, fines and taxes. Baton reserves the right to amend or adjust charges and to re-invoice the Customer in the following events if: (i) Customer provides incorrect information; (ii) service provider executed additional services; and/or (iii) Customer authorized service provider to perform additional services. If Customer disputes Baton’s invoice(s), Customer shall provide written notice of such dispute, specifically indicating the nature of the dispute. Such notice must be provided within five (5) days from the date of the invoice. In the event Baton does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid. Rates shown in emails and confirmation sheets may be different from the actual charges for Customer's shipment. Differences may occur based on actual weight, dimensions, and other factors.
All rates Baton provides to Customer are confidential. Customer is not permitted to disclose or make available any rate quotes to persons or entities other than its employees and agents who need to know the rate quotes to perform their transportation-related obligations. During the time that Baton’s rate quote remains outstanding and in effect, neither Baton nor the Customer should disclose to persons or entities outside the respective organizations any confidential information obtained from the other party in connection with the issuance of a rate quote, including the rate levels, expected volume of traffic and origins and destinations. These confidentiality restrictions will not apply to information that is generally available to the public, that is independently developed by a party without use of the other party’s information, that was known to a party before disclosure by the other party, or that is obtained from another source without violation of any confidentiality obligations.
F. Cargo Claims
Baton may assist Customer with the processing of cargo claims. Although Baton will assist with processing cargo claims, Baton has no responsibility or liability for processing cargo claims. Where a damage claim is submitted with Carrier on behalf of Customer, Baton shall have a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. The Customer acknowledges a claim for damages does not relieve it for payment under these Terms and Conditions. Timely payment is a condition precedent to claim processing. The Customer will look solely to its own insurance policy, a Shipper’s interest policy, or insurance provided by the carrier for damage to goods in transit. The Customer agrees to notify Baton in advance to the shipment whether Customer wants to purchase insurance for the shipment.
Unless Customer and Baton have agreed otherwise in writing and signed by an authorized Baton representative, Customer shall agree that the following Carrier terms shall apply as well:
Cargo claims shall be processed in accordance with 49 CFR Part 370 and the Carrier’s liability shall be governed by 49 USC 14706 (the “Carmack Amendment”) and any applicable carrier agreements with Baton or tariffs. Customer shall submit any cargo claim within three (3) weeks of delivery; unless the damage is concealed, which Customer shall notify Baton within five (5) business days from delivery and give the carrier five (5) business days for inspection. Shipper agrees to comply and be bound to Carrier’s on-hands notices regarding the disposition and/or storage of freight. Unless Carrier has a more restrictive term in its tariff or bill of lading, Carrier’s liability shall be limited to a maximum of $100,000 per shipment.
Carrier is not responsible for any damage or loss to temperature-controlled cargo (including any cargo governed by the FDA) unless customer, in advance, provides Carrier with written notice and instructions for handling the shipment and an authorized Carrier representative (Manager or Director) has signed the notice. A bill of lading shall not be considered “notice” of handling requirements and shall not be binding. If Consignee rejects a shipment and immediate disposition instructions are not provided, Carrier may dispose of the goods at its discretion. Customer shall be responsible for any disposition fees and freight charges. Carrier is not liable for any claims that only arise from, or as a result of, a broken seal, missing seal, tampered seal, or mismatched seal number. Seal integrity shall not be the only evidence used to support a claim; claimant must provide additional evidence which supports actual loss or damage to the goods.
All claims arising from international shipments shall be governed by the Carmack Amendment. Carrier’s liability shall be limited to $1.00 per pound, unless customer requests, in writing, more coverage for a higher rate in advance. Carrier shall not be liable for any cargo damage, loss, injury or delay occurring in Mexico. If Carrier agrees otherwise in writing to accept liability, Carrier’s liability is limited to $0.25 per pound. If this geographical liability limitation is judicially or otherwise determined to be ineffective for any reason whatsoever, then Carrier’s liability for loss or damage shall be limited to $1.00 per pound.
G. No Third-Party Beneficiary Rights.
These Terms and Conditions are not intended to and shall not be construed to give any third-party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
No waiver of any provision of this Agreement, or of the breach thereof, shall be construed as a continuing waiver or shall constitute a waiver of any other provision or breach. This Agreement is for specified services pursuant to 49 USC 14101 (b). To the extent that the provisions herein are inconsistent with Part (b), Subtitle IV, of Title 49 USC (ICC Termination Act of 1995) the Parties expressly waive all rights and remedies they may have under the Act.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall remain in full force and effect.
Gaines Law Group has served as counsel to Baton Services Inc. in the preparation of these Terms and Conditions which includes the terms as agreed by the parties. Nothing in these Terms and Agreements shall be construed in favor of or against Baton by virtue of its role in drafting these Terms and Conditions. Customers are encouraged to read this document in its entirety and consult with independent legal counsel regarding questions.
K. Governing Law and Limitation to File Suit.
These Terms and Conditions shall be governed by and construed in accordance with federal transportation laws and laws of the State of California without reference to its conflicts of law provisions. Any lawsuit arising from Baton’s Services or arising from these Terms and Conditions shall be brought and adjudicated in a count located in San Francisco, California. ANY CAUSE OF ACTION ARISING CUSTOMER HAS FROM BATON’S SERVICES MUST BE INITIATED WITHIN ONE (1) YEAR FROM THE DATE OF WHEN THE CLAIM ARISES.
L. Complete Agreement.
This Agreement constitutes the entire agreement between Customer and Baton regarding Baton’s Services and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral. No amendment to or modification of this Agreement will be binding on Baton without Baton’s written consent. Baton may modify this Agreement at any time for any reason.
Baton User Agreement
PLEASE READ THE TERMS OF THIS USER AGREEMENT CAREFULLY BEFORE USING THE SITE. THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE SITE.
By using or viewing the website located at BatonTrucking.com and all of related sites, software, applications or services offered by Baton Trucking, Inc. (the “Site”), You signify your agreement with each specific and separate term of this User Agreement and understand the following in its entirety, unless clearly defined in another agreement between the Parties with an authorized signature from a Baton representative:
The legal entity You are entering into this User Agreement with is Baton Trucking LLC, a California Corporation, located at 391 Grove Street, San Francisco, CA 94102.
Please note that this User Agreement contains an arbitration clause and class action waiver that governs how claims against Baton Trucking can be brought by you as a user. By agreeing to the terms of this User Agreement, you acknowledge and agree to submit all claims you have against Baton Trucking through final binding individual arbitration and you waive any right to participate in class actions, class arbitrations, or representative actions.
License and Acceptable Use. The Baton Trucking Services contain copyrighted material, inventions, know-how, potential patentable business method material, design logos, phrases, names, logos or applications, and code (“Intellectual Property Content”) all of which, unless otherwise indicated and/or provided pursuant to a third party license, are our sole property and we retain all appurtenant rights, interests, and title thereto. We also claim ownership rights under the copyright and trademark laws with regard to the “look”, “feel”, “appearance”, and “graphic function” of our Services including but not limited to its color combinations, sounds, layouts, and designs. You agree and acknowledge that your use of the Baton Trucking Services does not confer upon You any license or permission to use our (or any third party's) Intellectual Property Content. You shall not reproduce, reverse engineer modify, display, sell, or distribute the Intellectual Property Content, or use it in any other way for public or commercial purpose. All other trademarks, service marks, and copyrights are held by their rightful owners. Baton Trucking grants to you a non-exclusive, non-transferable (except as permitted below), worldwide limited license to make use of the Baton Trucking Services. This license does not include any resale of Baton Trucking Services, or its contents. You may not collect and/or use any shipment listings, descriptions, or prices for any reason. You may not engage in: any derivative use of any Baton Trucking Service or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to You in this User Agreement are reserved and retained by Baton Trucking or its licensors, suppliers, users, rightsholders, or other content providers. No Baton Trucking Service, nor any part of any Baton Trucking Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Baton Trucking. You may not misuse Baton Trucking Services. You may use the Baton Trucking Services only as permitted by law.
Trademarks, Copyrights and Restrictions. This site is controlled and operated by Baton Trucking or its representatives. All material on the Site, including, but not limited to, images, illustrations, audio clips and video clips, is protected by copyrights, trademarks, registered and unregistered, and other intellectual property rights which are owned and controlled by Baton Trucking or by other parties that have licensed their material to Baton Trucking. Material from any website owned, operated, licensed, or controlled by Baton Trucking may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by email or other electronic means unless otherwise agreed to in writing by Baton Trucking. The materials on the Site may not be used for commercial benefit without prior expressed written permission by Baton Trucking. Baton Trucking authorizes you to view and access a single copy of the content available on or from the Site solely for your personal use, and any modification of the materials on the Site or use of the materials for any other purpose is a violation of the copyrights and other proprietary rights. Except as expressly permitted by these terms and/or some other written agreement between you and Baton Trucking, the use of any such material on any other website or networked computer environment is prohibited. The Site may contain other proprietary notices, trademark and/or copyright information, the terms of which must be observed and followed. Information on the Site may be changed or updated without notice. In addition, decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software on the Site into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited. You shall not engage in “spidering,” “screen scraping,” “database scraping,” harvesting of user information, or any other automatic means of accessing, logging-in or registering on this website, or obtaining or accessing any information from or through the Site. You shall not use the Site in any manner with the intent to interrupt, damage, disable, overburden or impair the Site, or interfere with any other party’s use and enjoyment of the Site, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Site.You may not use the Site in order to transmit, post, distribute, store or destroy material.
Payment Terms. Payment terms shall be defined in a separate agreement between the parties. If any payment term is not agreed to by the Parties, the Parties agree to follow, without exception and as a precondition to this User Agreement, all terms and conditions located at www.batontrucking.com/terms-and-conditions.
Services. Any contractual agreements between You and Baton Trucking will be documented through a separate written agreement between You and Baton Trucking, although the process may be initiated by submitting information through the Site. Baton Trucking’ receipt of any transaction request information does not signify acceptance of any offer regarding the terms of such transaction. Baton Trucking RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ANY PRODUCTS OR SERVICES DESCRIPTIONS LISTED ON THE SITE, INCLUDING ANY PRICES FOR SUCH PRODUCTS OR SERVICES.
Mobile Application Usage. When using the Services on a mobile device and/or the Baton Trucking mobile application, you shall: (i) observe all traffic laws and otherwise drive safely; (ii) use your good personal judgment while driving, (iii) not interact with the app, unless your vehicle is stationary and legally parked; (iv) not use the Services for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes. Baton Trucking does not warrant that the mobile application will be compatible or interoperable with your mobile device or any other piece of hardware, software, or equipment. Furthermore, you acknowledge that compatibility and interpretability problems can cause the performance of your mobile device to diminish or fail completely, and may result in permanent damage to your mobile device, and corruption of the software and files located on your mobile device, and Baton Trucking shall have no liability should these problems arise. You assume all responsibility and risk for the use of the Baton Trucking Services and mobile applications. You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct application for your device. Baton Trucking is not liable if you do not have a compatible mobile device or if you download the wrong version of the application for your mobile device. Baton Trucking reserves the right to terminate the Service and the use of the application should you be using the Service or application with an incompatible or unauthorized device. You will comply with all applicable law from your home nation, the country, state, and/or city in which you are present while using the application or Service.
Information You Submit. You solely are responsible for any information You provide to us or other users in the registration, shipping, transportation process, or any other use of our Services. Your personal information and any shipment listings must be true, legal, accurate, and non-fraudulent. You authorize Baton Trucking to use information You supply to us in connection with our Services and in accordance with this User Agreement. You acknowledge and agree that our Services act as a passive conduit for any and all communication and/or distribution of information. We have no control, editorial or otherwise, over any communication, information, and specifically, over the content of such communication or information. We do not and will not ensure the accuracy or reliability of such communication or information nor will we act as a monitor over the content of such communication for information. However, we reserve the absolute right to remove or restrict any communication or information that You may post to the Baton Trucking Services that is in violation of this User Agreement, illegal, threatening, or lewd. You assume legal responsibility for all damages incurred as a result of any of your online communication or distribution of information. Furthermore, You expressly represent and warrant the following: (1) You are the owner, with all appurtenant rights thereto, of any and all communication, content and/or information that You post on the Baton Trucking Services, or; (2) You are the legitimate and rightful grantee of a worldwide, royalty free, perpetual, irrevocable, sub-licensable, non-exclusive license to use, distribute, reproduce and distribute such communication, content and/or information. To only that extent to allow us to use your communication, content and/or information and not violate your rights in the same, You grant to us a royalty free, transferable, worldwide, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise the copyright, publicity and database rights that You have in your communication, content and/or information. You further represent and warrant that any and all of your online communication, content and/or information: (a) Will not violate any international, federal or state law, regulation, rule, or statute; (b) Will not violate the terms of this User Agreement; (c) Will not infringe upon any third party's intellectual property rights including but not limited to copyright, patent, or trademark rights; (d) Will not contain obscene, lewd, or suggestive content and under no circumstances will it contain pornography; (e) Will not be libelous, threatening, harassing, or defamatory. This specifically includes making legal claims of any sort about Baton Trucking employees, agents, other users, or any of the Baton Trucking Services; (f) Will not knowingly contain any computer hardware or software, viruses, trojan horses, worms, or any other computer programming that may interfere with the operation of our Services, operation of any of our systems, and/or create or impose a large burden or load on our Services; (g) Will not scan or test the vulnerability or security of our Services or the system within which our Services operate; (h) Will not be used for commercial or public purposes outside of the requirements of this User Agreement; (i) Will not knowingly create liability for Baton Trucking through your use of Baton Trucking’s Services; (j) Will not frame or link to our Services without our written permission; and (k) Will not knowingly involve the upload, or insertion of, any programming language or code into or onto our Services.
Information Posted Publicly. Unless otherwise indicated, You are authorizing Baton Trucking to use or repurpose this information within the scope of the Baton Trucking Services and this User Agreement, including in a user identifiable manner. In order to maintain the safety, security, and integrity of the Baton Trucking Service, You may not provide contact information to other users prior to booking and never on any public area of the site.
Some portions of the Baton Trucking platform implement third party services, including API(s). Your use of the Baton Trucking platform is subject to each individual third party’s terms of services.
Right to Suspend or Remove Users. We reserve the absolute right to reject or suspend your participation, or remove You from your current participation, with the Baton Trucking Services at any time and for any reason or for no reason and without notice to You. We are not liable for any damage or loss resulting from such hold, suspension, or removal. An event that may result in the suspension or removal of your participation. Baton Trucking has no obligation to disclose the reason for actions taken under this section. All decisions are final.
Feedback. Baton Trucking may request or allow, You or a third party to rate each other by leaving feedback for one another. You shall indemnify Baton Trucking for any and all claims regarding feedback You provide or feedback offered by a third-party regarding You.. You agree that You will not use your Baton Trucking feedback in any venue other than Baton Trucking. Users should always use caution and good judgment when leaving feedback for another user because users could be held legally responsible for damages to a user’s reputation if a court were to find that the remarks constitute libel or defamation. Under federal law (the Communications Decency Act), because Baton Trucking does not censor feedback or investigate it for accuracy, Baton Trucking is not legally responsible for the remarks that users post, even if those remarks are defamatory. However, this law does not protect the person who leaves the feedback from responsibility for it. To maintain the integrity of the feedback system, feedback left for a user may be a permanent part of that user’s profile and Baton Trucking may not be able or willing to edited feedback at a later date. Users should resolve any misunderstandings prior to leaving feedback, as most misunderstandings can and are resolved quickly through direct communication.
Dispute Resolution. Disputes between You and Baton Trucking regarding our Services should be reported to [email protected] and are otherwise governed by this User Agreement. In the event that you have a dispute with another user, we will attempt to resolve any disputes through a customer service protocol. Because we are a neutral venue, however, we are not responsible for successfully resolving any disputes, nor are we responsible for any decisions made or actions taken in a reasonable effort to assist in the resolution of a dispute involving you. If You report a dispute to Baton Trucking, we will make reasonable efforts to help both parties communicate; however, all disputes must be resolved directly between You and the other party. Therefore, if we are contacted by a user who claims to have a dispute with You regarding transactions completed on Baton Trucking and they request your contact information (including but not limited to any of your provided phone numbers and/or addresses) to settle the dispute, You expressly authorize us to release your provided contact information to the Baton Trucking user and You agree to release us from any and all liability associated therewith. We encourage You to report all user-to-user disputes to law enforcement officials, or a certified mediation or arbitration entity. When appropriate, we also encourage you to report disputes involving fraud, theft, or other criminal activity to the appropriate law enforcement agencies.
Prohibited and Restricted Items. Full responsibility rests with the consigner to comply with all laws and regulations that relate to hazardous, restricted, and perishable material. Anyone who sends, or causes to be sent, a non-mailable or improperly packaged hazardous material can be subject to legal penalties (i.e., fines and/or imprisonment), including but not limited to those specified in 18 U.S.C.
No Agency. You hereby agree and acknowledge that your execution of this User Agreement, your provision of services and/or your use of the Baton Trucking Services, does not confer or imply any contractor (independent or otherwise), agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship with us and furthermore that no affiliation, association or connection exists between You and Baton Trucking.
Release. Should you have a dispute with one or more Baton Trucking users, You release Baton Trucking, Inc., its officers, directors, agents, advisors, attorneys, accountants, and employees from all claims, demands, and damages (actual and consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes and/or this User Agreement.
Confidentiality/Non-Disclosure. As a result of the performance of this User Agreement and whether due to any intentional or negligent act or omission, we may disclose to You or You may otherwise learn of or discover, our documents, business practices, object code, source code, management styles, day-to-day business operations, capabilities, systems, current and future strategies, marketing information, financial information, software, technologies, processes, procedures, methods and applications, or other aspects of our business (“Our Information”). You hereby agree and acknowledge that any and all of Our Information is confidential and shall be our sole and exclusive intellectual property and proprietary information. You agree to use Our Information only for the specific purposes as allowed by the performance of this User Agreement. Any disclosure of Our Information to a third party specifically including a direct competitor is strictly prohibited. All obligations contained in this User Agreement shall survive the termination of this User Agreement. Furthermore, You acknowledge that our information is proprietary, confidential, and extremely valuable to us, and that we would be materially damaged by your disclosure of Our Information. You acknowledge and agree that monetary damages provide an insufficient remedy for the breach of this confidentiality obligation, and that we shall be entitled to injunctive relief in addition to recovery for damages.
Record Keeping/Audit. Baton Trucking reserves the right to keep all records of any and all transactions and communications between You and other users for administration purposes in accordance with all applicable laws and regulations. All records will be kept in accordance with applicable privacy laws and regulations and You are required to do the same. Baton Trucking is not required to provide you of any records of any transaction or communication between You and Baton Trucking or any third party.
Non-solicitation. During the term of this User Agreement You shall not solicit to hire nor hire our employees of whom You become aware of through the performance of this User Agreement. Furthermore, You shall not otherwise interfere with any of Baton Trucking’s other business relationships including but not limited to those with other Baton Trucking users, vendors, or business associates. Specifically, You shall not knowingly, directly or indirectly, solicit or attempt to solicit, divert, and/or send marketing content to any Baton Trucking user in which you initially met through Baton Trucking.
Unsolicited Idea Submission. We always want to receive messages and feedback from Baton Trucking users and welcome any comments regarding the Baton Trucking website. However, Baton Trucking policy does not allow us to accept or consider ideas, suggestions, or proposals other than those we specifically request. The intent of this policy is to avoid the possibility of future misunderstandings when new functionality and features developed internally by Baton Trucking might be similar or even identical to your idea. If You do send Baton Trucking an unsolicited suggestion, idea, or proposal, or if You send, at the request of Baton Trucking, a comment or suggestion to improve the Baton Trucking Website (for example, through discussion boards or via email) (collectively, the “Submission”), Baton Trucking will consider the Submission to be non-confidential and non-proprietary. Baton Trucking shall have no obligations concerning the Submission, contractual or otherwise (including but not limited to an obligation to keep the Submission confidential), and shall not be liable for any use or disclosure of any Submission. Baton Trucking shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to you.
Remedies. If You use our Services in violation of this User Agreement include, we are authorized to take action against you as a user and/or take action against your Baton Trucking account which may include, but is not limited to, the immediate removal of your shipment(s), offers, bids and/or profile, notifying our users of your actions, issuing a warning, temporarily suspending your user status, and/or terminating your user status.
Limited Liability and No Warranty. Baton Trucking, its affiliates, and each of their directors, officers, employees, and authorized representatives DO NOT WARRANT THAT THE WEB SITE IS ERROR-FREE OR THAT THE WEB SITE WILL BE PROVIDED. MATERIALS FOUND WITHIN THIS WEB SITE MAY CONTAIN TECHNICAL INACCURACIES OR OTHER ERRORS. ALL MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE GREATEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Baton Trucking, its affiliates and each of their directors, officers, employees and authorized representatives DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Baton Trucking, its affiliates and each of their directors, officers, employees and authorized representatives MAKE NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE SITE OR ANY WEBSITE WILL NOT INFRINGE THE RIGHTS OF OTHERS. Some jurisdictions do not allow the disclaimer of implied warranties, so these limitations may not apply; however, they SHALL apply to the greatest extent permitted by law.
Damages. Baton Trucking, its affiliates and each of their directors, officers, employees and authorized representatives WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL AND/OR CONSEQUENTIAL DAMAGES (SUCH DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES, LOST DATA, AND/OR COSTS OF PROCURING SUBSTITUTE GOODS, SOFTWARE OR SERVICES) HOWEVER ARISING, EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES. YOU EXPRESSLY AGREE Baton Trucking, its affiliates, and each of their directors, officers, employees, and authorized representatives SHALL HAVE NO LIABILITY TO YOU FOR ANY CLAIM BROUGHT AGAINST YOU BY A THIRD PARTY. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IF ANY OF Baton Trucking, its affiliates and their Respective directors, officers, employees and authorized representatives is RESPONSIBLE FOR ANY DAMAGES, THE MAXIMUM AMOUNT YOU MAY RECOVER FOR ANY AND ALL CLAIMS RELATING TO THIS YOUR USE OF THE WEB SITE SHALL NOT EXCEED TWO HUNDRED DOLLARS ($200). Some jurisdictions do not allow the exclusion or limitation of certain types of damages, so these exclusions may not apply; however, they shall apply to the greatest extent permitted by law.
In addition, to the extent permitted by applicable law, we are not liable, and You agree not to hold Baton Trucking responsible, for any damages or losses resulting in any way from this User Agreement, or the following:(a) Viruses or other malicious software obtained by accessing our Services, or tools linked to our Services including those of 3rd party solution providers; (b) Glitches, bugs, errors, or inaccuracies of any kind including information and graphics obtained from or in our Services; (c) The content, actions, or inactions of third parties, including items listed using our Services; (d) Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies; (e) Changes to the Service availability, including planned or unplanned Service downtime; Changes to any Baton Trucking products, features, or Services; (f) Your removal from the Baton Trucking website. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to You; In such jurisdictions, it is the intent of the parties to this User Agreement to make clear that Baton Trucking’s liability is extremely limited and provides its services “AS IS”, and if this User Agreement is modified by any Court of competent jurisdiction to conform to local law, such modification shall be conducted while preserving the original intent of the parties as closely as possible.
Indemnity. You agree to indemnify and hold Baton Trucking and our officers, directors, agents, advisors, attorneys, accountants, and employees harmless from any claim or demand, including the cost of your attorneys' fees, made by any third party due to or arising out of your negligence, breach of this User Agreement, misuse of Baton Trucking’s Services, or violation of any law, requirements, or the rights of a third party.
Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Baton Trucking Services and your listing, shipping, transporting, and solicitation of offers to ship, transport items, and cause the TSP to do the same.
Arbitration and Waiver of Class Actions. Any legal claim arising out of or relating to this User Agreement or our Services (excluding legal action taken by Baton Trucking to collect our fees or recover damages for, or obtain an injunction relating to, the Baton Trucking operations, intellectual property, or Our Information), shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, including, if necessary, the Optional Rules for Emergency Measures of Protection. The arbitration shall be conducted in Austin, Texas, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS USER AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR USER.
Security. Baton Trucking uses industry standard practices to safeguard your personal information. We utilize several different security techniques to protect data from unauthorized access, but we cannot guarantee the security of our system. We also do not guarantee uninterrupted or secure access to our system, as the operation of our Services can be interrupted by numerous factors outside of our control. Therefore, You understand and agree to waive any right or requirements to be notified of any kind of security breach.
Governing Law. THIS USER AGREEMENT AND YOUR USE OF THE SERVICES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Other Terms and Conditions. Without exception and as a precondition to this User Agreement You acknowledge and agree to all relevant terms and conditions located at www.batontrucking.com/terms-and-conditions. You acknowledge and agree that we have the sole discretion to set forth and post additional terms and conditions for your use of the Baton Trucking Services. You agree that any additional terms and conditions that apply to your use of our Services shall be considered an effective amendment to this User Agreement and said terms and conditions shall be incorporated herein. Furthermore, You expressly agree that if there is any conflict between those additional terms and conditions and the specific terms and conditions set forth herein, the terms and conditions set forth in those additional terms shall govern.
General. This User Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or a prior course of dealing not made a part of the User Agreement by its express terms. The invalidity or unenforceability of any provision of this User Agreement shall not affect the validity of this User Agreement as a whole and any such provision should be enforced by the authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this User Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys' fees and costs will be awarded to the prevailing party in the event of litigation or arbitration involving the enforcement or interpretation of this User Agreement. The section headings used herein are for convenience only and shall not be given any legal import.
Notices. All notices sent to Baton Trucking shall be sent by physical mail to: Baton Trucking, Inc., 325 China Basin St. Unit 607, San Francisco, CA 94158. All notices will be sent to You using the contact information you provide, and may be sent via regular mail, email, text, phone call, or fax.
Drafting. Gaines Law Group has served as counsel to Baton Trucking, Inc. in the preparation of this User Agreement which includes the terms as agreed by the parties. Nothing in this User Agreement shall be construed in favor of or against Baton Trucking by virtue of its role in drafting this User Agreement. Users are encouraged to read this document in its entirety and consult with independent legal counsel regarding questions.
Last Revised Date: January 14, 2020