Overhaul User Agreement
This Overhaul User Agreement (this “Agreement”) is a legal contract between you (“you” or “your”) and the Overhaul Group, Inc. (“Overhaul” or “we” or “our”). The Agreement explains how you are permitted to use the website located at over-haul.com as well as all associated sites linked to over-haul.com by Overhaul, it subsidiaries and affiliated companies (collectively, the “Site”). Unless otherwise specified, all references to “Site” include the content, services available through this Site (the “Services”) and any software that Overhaul provides to you that allows you to access the Site from a mobile device (a “Mobile Application”). By using the Services, you further acknowledge that you are older than the age of majority as defined in your jurisdiction and, that you have the authority and do hereby legally bind the business entity, if any, for which you serve as an agent, independent contractor or employee thereof to the same terms and conditions, without limitation or qualification. When you accept the terms and conditions of this Agreement, you hereby agree and acknowledge that at any time and in our sole discretion, we may modify, update or add or remove the terms and conditions of this Agreement by posting the updated Agreement with its new terms and conditions on the Site. By using this Site after Overhaul has updated the Agreement, you are agreeing to the updated Agreement. If you do not agree with the updated Agreement, you must stop using the Site. This Agreement may not be modified, amended, and/or changed by you in any manner. Furthermore, you agree that we may modify or discontinue our Services at any time and without notice and without any liability or responsibility to you. BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
- Welcome to Overhaul
Overhaul Group, Inc. (“Overhaul”) offers a proprietary cargo management platform, including cargo visibility and on-time performance management tools (as it may be updated from time to time, the “Platform”) designed to facilitate transactions between shippers of goods (“Shippers”) and common carriers (“Carriers”) for the transportation of goods, either directly or through the use of one or more freight transportation brokers. These Platform Terms and Conditions and the Order Form to which they are attached together constitute the “Agreement” between Overhaul and the Customer identified on the Order Form with respect to such Customer’s subscription access to the Platform, and related Services. Terms capitalized herein and not defined herein have the meanings ascribed to them in the Order Form. Customer is only authorized to use the Service if it agrees to abide by all applicable laws and this Agreement.
Overhaul is not a party to any shipping agreement made between a Shipper and a TSP, unless Overhaul creates a Carrier agreement between the TSP and Overhaul on behalf of the Shipper. Overhaul does not endorse, recommend or refer any specific TSP or Shipper, nor does Overhaul have any control or influence over actions or decisions made by users of the Site. Furthermore, due to the difficulty of individual authentication, especially on the Internet, we cannot and do not guarantee the verification of any member’s identity. Any identity verification methods we employ are strictly on a best efforts basis and should not be solely relied upon by our members. You acknowledge and agree that any and all communications, correspondence, verbal or written or by electronic means, or any warranties or representations, made with regard to the arrangement of transportation services are not provided by us and are specifically and solely between you and the other member.
2. License and Acceptable Use.
The Site and the 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 Site and Services including but not limited to its color combinations, sounds, layouts and designs. You agree and acknowledge that your use of the Services does not confer upon you any license or permission to use our (or any third party’s) Intellectual Property Content except as otherwise set forth herein. You shall not reproduce, 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. Subject to the terms and conditions of this Agreement, and your compliance with this Agreement, Overhaul hereby grants to you a non-exclusive, non-transferable, personal, limited license to use the Site. Except for the foregoing license, you have no other rights in the Site or the Intellectual Property Content and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Intellectual Property Content in any manner. If you breach this Agreement, the above license will terminate automatically and you must immediately destroy any downloaded or printed Intellectual Property Content. This license does not include any resale of Services, or contents of the Services; any collection and use of any shipment listings, driver availabilities, driver profile information, company profiles, descriptions, or prices; any derivative use of any Services, or contents of the Services; 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 Agreement are reserved and retained by Overhaul or its licensors, suppliers, users, rights-holders, or other content providers. The Services may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Overhaul. You may not misuse the Services. You may use the Services only as permitted by law.
3. Provision of the Services and Use of the Platform.
Subject to the terms and conditions of this Agreement, Overhaul shall use commercially reasonable efforts to provide you with access to the Services, including the Customer-facing elements of the Platform during the term of this Agreement (including any Trial Period indicated on the Order Form). In order to interact with Shippers, Carriers and Drivers via the Platform, the applicable Shipper(s) and Carrier(s) must have accepted the Overhaul terms and conditions applicable to them as a Shipper and/or Carrier. In the case of additional Customer-specific Services, the parties will issue a Statement of Work detailing the specifics thereof, which shall be governed by these terms.
4. Customer’s Authorized Users.
During the Term, Customer may allow its employees and agents (referred to as “Customer’s Authorized Users” or “Authorized Users”) to use the Service on Customer’s behalf. As a condition to such use, Authorized Users shall abide by the terms set forth herein and to any additional terms published by Overhaul specific to Authorized Users. Customer shall immediately notify Overhaul in the event that it becomes aware of any violation of the terms of this Agreement by any Authorized User. Customer shall be liable for any breach of the Agreement (or any Authorized User specific terms) by any Authorized User.
5. Limitations on Availability; Third Party Providers.
The Platform or some aspects thereof may not be available in all languages or in all countries. Overhaul makes no representation that the Platform is available or permitted in any particular location. Use of the Platform is void where prohibited. Customer uses the Platform at its own initiative and is responsible for its compliance with any applicable laws, together with all rules, regulations and guides promulgated under any such laws and any directives issued by any governmental authority and its compliance with its applicable contracts, including any applicable government contracts. Overhaul may also impose limits on the use or access to the Platform as required by law. Further, Customer acknowledges that elements of the platform that make the Platform possible are provided by third parties, and that Overhaul is not responsible for failures caused by such third parties. In certain cases, Customer’s access to and use of the Platform may be subejct to certain third party terms, conditions and acknowledgements, which shall be located here (the “Third Party Terms”). Customer hereby accepts the Third Party Terms, agrees to abide by them at all times, and shall indemnify Overhaul for any loss, claim or damages suffered or incurred by Overhaul as the result of any breach thereof by Customer or its Authorized Users.
6 . Restrictions on Use of The Service.
Customer and its Authorized Users may use the Platform solely for its intended purpose in accordance with this Agreement. Customer may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Platform. Customer may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Platform, or any part thereof, or integrate the Platform with other technology, other than as is expressly contemplated by Overhaul’s pertinent documentation. If for some reason these restrictions are prohibited by applicable law or by an agreement Overhaul has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Platform in any unauthorized way whatsoever, including, but not limited to, (i) by trespass, (ii) by burdening network capacity or consuming a disproportionate share of the resources on which the Platform relies (e.g. compute time, disk storage, and network bandwidth), or (iii) by utilizing the Platform in a way that unnecessarily interferes with the normal operation thereof. Further, Customer may not remove or export from the United States or allow the export or re-export of the Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority. As defined in FAR section 2.101, the Platform and all related software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer shall cooperate with Overhaul as may be reasonably required to enable the provision of the Services. If Overhaul will be including any Customer-branded elements within the Platform (such as displaying Customer’s trademark to Shippers and Carriers), Customer hereby grants to Overhaul a non-exclusive, transferable, worldwide license to use Customer’s trademarks and other applicable proprietary rights during the Term as may be reasonably necessary or helpful in connection with the provision of those Customer-branded elements.
8. Support and Maintenance.
During the Term of this Agreement, Overhaul will use commercially reasonable efforts to provide Customer with telephone and email support regarding use of the Platform. Scheduled system maintenance shall take place from time to time, and during such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure.
9. Additional Programs and Third Party Sites.
We may, from time to time, offer additional programs, awards or offerings through our Site (collectively, “Additional Programs”). You acknowledge that such Additional Programs may be subject to different terms and conditions made available to you at the time of registering for such Additional Programs. Use of, and participation in, such Additional Programs shall be at your discretion. We reserve the right to modify, remove, or add features and terms to such Additional Programs at any time.
10. Using the Site and the Services.
You can simply view the Site and not use any Services on the Site. You need not register with Overhaul to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site and to use certain Services offered on and through the Site, you must register with Overhaul for an account and receive a password.
11. Password Restricted Areas of this Site.
If you desire to register for an account with Overhaul, you must submit the following information through the account registration page on the Site: https://app.over-haul.com/#/auth/sign_up. You will also have the ability to provide additional optional information which is not required to register for an account but may be helpful to Overhaul in providing you with more a more customized experience when using the Site or its Services. Once you have submitted your account registration information, the Overhaul administrator shall have the right to approve or reject the requested registration, in the Overhaul administrator’s sole discretion. If your account is approved by the Overhaul administrator, you will be sent an e-mail and you will be able to create a password to allow you to log-on to the Site using such password (the “Password” and collectively with any updated passwords, the “Passwords”) the first time you log into your account on the Site to complete the account registration process.
You are responsible for maintaining the confidentiality of your Passwords, and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify Overhaul if any of your Passwords on this Site are lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your profile by logging into your account directly and making the desired changes. You acknowledge that there is no practical ability to modify the information submitted by you for any background screening services provided through the Site.
If you register for a “beta account” or other pre-release version of the Site and/or the Services on the Site (“Beta Release”), you acknowledge and agree that the Beta Release may contain, in Overhaul’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Site and/or Services that may be offered through the Site. You acknowledge and agree that any “beta account” will automatically convert to a commercial release version account upon the launch date of the Site and its Services to the public (“Public Launch Date”). While Overhaul generally intends to distribute commercial release versions of the Site and the Services on the Site, Overhaul reserves the right not to release later commercial release versions of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by Overhaul to be suitable for commercial use, and that it may contain errors affecting its proper operation. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF A BETA RELEASE MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICES THAT MAY BE OFFERED THROUGH THE SITE. OVERHAUL SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY BETA RELEASE.
12. Transportation Service Providers.
If you are a TSP, or seek to register as a TSP, you must legally be able to transport the shipments. You agree that it is your sole obligation to comply with all laws, rules, statutes and regulations that may apply including, without limitation, that all drivers are in compliance with all FMCSA regulations, which can be found at https://www.fmcsa.dot.gov/resources-for-drivers and all carriers and owner operators, who claim to have own their own authority to operate, have full operating authority and adhere to FMCSA compliance standards which can be found at https://www.fmcsa.dot.gov/resources-for-carrier-companies . You further agree to adhere to any and all local, state, provincial and federal licensing requirements. TSPs agree that through the various products and features on Overhaul that they are solely responsible for all aspects of services, pricing and terms they offer the Shipper. Rates, services and terms are solely provided by the TSPs and not by Overhaul. You understand and acknowledge that all shipment information is provided by other registered users and Overhaul has no control over or responsibility for the accuracy of this information. You are responsible for reading all of the shipment details. Our Services are not available to temporarily or indefinitely suspended Overhaul members. Overhaul reserves the right to suspend or terminate your use of the Services for violations of this Agreement, and your failure to adhere to Overhaul’s posted policies or procedures. Overhaul may, without notice to you, suspend or terminate your use of the Site and/or Services if you are convicted of a felony at any time after your registration.
13. Payment of Fees.
Customer will pay Overhaul the then applicable fees described in the Order Form for the Services in accordance with the terms set forth therein (the “Fees”). Customer hereby authorizes Overhaul to charge the credit card—or other electronic payment method—associated with Customer’s Account for all Fees on an as-incurred basis. Notwithstanding the foregoing, Overhaul may invoice Customer for any Fees, and Customer shall pay such invoice within thirty (30) days of receipt thereof via money transfer, ACH, check or any other payment method Overhaul may deem acceptable in its sole discretion. All Fees are due and payable in U.S. dollars, non-refundable (except to the extent set forth in the Agreement) and are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to Overhaul, as required by applicable law. If payment is not made on the respective due date, Overhaul may, at its discretion and in addition to other remedies available, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, and compounded monthly, and (ii) suspend the Services. IF CUSTOMER’S USE OF THE SERVICES EXCEEDS A SERVICES CAPACITY PARAMETER SET FORTH ON THE ORDER FORM, OR OTHERWISE REQUIRES THE PAYMENT OF ADDITIONAL FEES (PER THE TERMS OF THIS AGREEMENT), CUSTOMER SHALL BE BILLED FOR SUCH USAGE AND AGREES TO PAY THE ADDITIONAL FEES IN THE MANNER PROVIDED HEREIN. If Customer believes that Overhaul has billed Customer incorrectly, Customer must contact Overhaul no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Overhaul’s customer support department or the Overhaul Account Manager
9. Mobile Application Usage.
Overhaul makes available Mobile Applications to access the Site via a mobile device. To use the Mobile Application, you must have a mobile device that is compatible with the mobile service. Overhaul does not warrant that the Mobile Application will be compatible with your mobile device. Overhaul hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Overhaul may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Overhaul and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
You are responsible for all equipment, telecommunication and internet connections, and all related charges (including mobile data charges) that you need or may incur when using the Services on a mobile device and/or the Mobile Application. If you are unsure about what mobile or internet charges may apply, you should ask your internet service provider or telecom provider.
When using the Services on a mobile device and/or the 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.
Overhaul 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 of and files located on your mobile device, and Overhaul shall have no liability should these problems arise. You assume all responsibility and risk for the use of the Services and mobile applications.
You may only access the Services using authorized means. It is your responsibility to check to ensure you download the correct application for your device. Overhaul is not liable if you do not have a compatible mobile device or if you download the wrong version of the Mobile Application for your mobile device. Overhaul reserves the right to terminate the Services and the use of the Mobile Application should you be using the Services or Mobile Application with an incompatible or unauthorized device. You will comply with all applicable law from your home nation, the country, state, province and/or city in which you are present while using the application or Service.
The following additional terms and conditions apply with respect to any Mobile Application that Overhaul provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that this Agreement is between you and Overhaul only, and not with Apple, Inc. (“Apple”).
- Your use of Overhaul’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- Overhaul, and not Apple, is solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that Overhaul, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.
- You agree that Overhaul, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as they relate to your license of Overhaul’s iOS App. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that Overhaul provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that this Agreement is between you and Overhaul only, and not with Google, Inc. (“Google”).
- Your use of Overhaul’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. Overhaul, and not Google, is solely responsible for Overhaul’s Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to Overhaul’s Android App or this Agreement.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Overhaul’s Android App.
15. Mobile App Navigation.
The Mobile App is not to be used in any circumstance that puts you (or any driver you employ) at risk of injury. Under no circumstance will Overhaul assume any responsibility for the consequences of driving decisions. By accepting this agreement, you hereby represent, warrant, and promise to Overhaul that neither you, nor any driver you employ, will use the Mobile App while operating any motor vehicle.
Navigation data or instructions provided by the Overhaul App is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury and/or property or environmental damage. In addition, you are advised that Overhaul provides navigation data or instructions only for convenience, and Overhaul makes no guarantee as to accuracy. Navigation data and instructions do not necessarily take into account any of the following: (1) the height of the truck and/or load, (2) the presence of bridges both on or above the route, (3) the suitability of the route for a particular load or shipment, or (4) the size, paving, number of lanes, traffic conditions, or general road character and conditions. Finally, by accepting this agreement you agree that if you feel that any directions or route requires you to perform an unsafe (as to persons or property) or illegal maneuver, places you in an unsafe situation, or directs you into an area that you consider to be unsafe or improper, then you will not follow such suggested directions or route.
16. Mobile App Points of Interest Locations and Sourcing.
Overhaul receives monthly location updates from a third party vendor that sources location information of businesses listed in the Overhaul mobile application. This provider sources this information directly from various business’ website i.e. publicly available data. Overhaul asks users to report any incorrect information listed. Overhaul does not independently verify such information provided and therefore disclaims any and all responsibility for the quality, accuracy, availability, or completeness of such information.
17. Mobile App Fuel Pricing.
Overhaul receives daily fuel price updates from a third party provider. Fuel prices are pulled directly from businesses. Fuel prices updates are made to the Overhaul mobile application between 3-4amMT daily.
18. Information You Submit.
You solely are responsible for any information opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each, a “Submission”). Your personal information and any shipment listings must be true, legal, accurate, and non-fraudulent. You authorize Overhaul to use Submissions in connection with our Services and in accordance with this Agreement. You acknowledge and agree that our Services act as a passive conduit for any and all Submissions. We have no control, editorial or otherwise, over any Submissions. We do not and will not ensure the accuracy or reliability of Submissions nor will we act as a monitor over the content of Submissions. However, we do reserve the absolute right to remove or restrict any Submission that you may post to the Site that is in violation of this 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.
20. Unauthorized Activities.
When using this Site and/or the Services, you agree not to and you further represent and warrant that any and all of your Submissions
- Will not violate any international, federal, state, or provincial law, regulation, rule, or statute;
- Will not violate the terms of this Agreement;
- Will not infringe any third party’s intellectual property rights including but not limited to copyright, patent or trademark rights;
- Will not contain obscene, lewd, or suggestive content and under no circumstances will it contain pornography;
- Will not be libelous, threatening, harassing or defamatory. This specifically includes making legal claims of any sort about Overhaul employees, agents, other members, or any of the Overhaul Services;
- 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;
- Will not scan or test the vulnerability or security of our Services or the system within which our Services operate;
- Will not be used for commercial or public purposes outside of the requirements of this Agreement;
- Will not knowingly create liability for Overhaul through your use of Overhaul’s Services;
- Will not frame or link to our Services without our written permission; and
- Will not knowingly involve the upload, or insertion of, any programming language or code into or onto our Services.
- a) Overhaul Member Moderation. Overhaul reserves the right to suspend anyone’s account with Overhaul at any time. Overhaul reserves the right to edit, amend, or delete any information posted on the Services if, in the sole opinion of Overhaul, that it is in violation of any policy.
- b) Information Posted Publicly. Unless otherwise indicated, shipping transaction activity on Overhaul is intended to be made public, and you are authorizing Overhaul to use, copy, modify, adapt or repurpose this information for Overhaul’s business purposes, including in a user identifiable manner. In order to maintain the safety, security and integrity of the Services, you may not provide contact information to other members prior to booking.
21. Intellectual Property Infringement.
Overhaul respects the intellectual property rights of others, and we ask you to do the same. Overhaul may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide Overhaul’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Overhaul to locate the material, and the date and time of the commission of the claimed infringement.
- A description of your interests or rights in or to the work claimed to have been infringed.
- Information reasonably sufficient to permit Overhaul to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Overhaul’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows: email@example.com.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
Upon receiving a notice of claimed infringement that complies with the requirements set out above, and upon payment of any fee that we may lawfully charge, we will forward the notice to the location you have provided (or, if we are unable to forward it, we will inform you of the reasons).
We also have the right to remove or disable access to copyright-protected material that you provided, if such removal is pursuant to a valid infringement take-down notice that we have received (and we will notify you that we have done so). If you receive such notice from us, you may provide us with a counter-notification in writing to Overhaul designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Overhaul may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
Overhaul reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
22. Right to Suspend or Remove Members and Reinstatement.
We reserve the absolute right to reject or suspend your participation, or remove you from your current participation, with the Services at any time and for any reason or for no reason and without notice to you. An event that may result in the suspension or removal of your participation can include but is not limited to: any circumvention of the Services by you or by others at your direction; your creation, maintenance and/or management of more than one account; your circumvention or non-payment in full of our fees; any attempt by you to improperly influence, or cause another to, improperly influence the feedback of members; any attempt by you to harass, or cause another to harass, or commit inappropriate communications with a member and/or a failure to deliver the promised services on time; any attempt by you to harass, or cause another to harass, or commit inappropriate communications with one of employees, agents, or partners; or our knowledge of criminal convictions which we deem to be of risk to the Overhaul community.
Upon your removal or suspension from the Services you may petition for reinstatement. Your petition for reinstatement must include a written statement as to why you should be reinstated and an acknowledgement and understanding of previous violations. Your petition will be reviewed at our discretion and any determination as to your reinstatement will be based on our sole judgment. Your submission of a petition does not, in any manner, guarantee that you will be reinstated and we specifically disclaim any and all representations with respect to such guarantee. We will contact you as to our decision to reinstate you. We are not obligated to give you any reason or basis as to our decision. You understand that any decision as to reinstatement may be a simple, yes or no. All decisions are final.
23. Dispute Resolution.
Disputes between you and Overhaul regarding our Services should be reported to us. We will attempt to resolve any disputes you have with us. We are a neutral venue and as such we are not responsible for resolving any disputes between you and members regarding services. If you report a dispute to Overhaul, 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 member who claims to have a dispute with you regarding transactions completed on the Site 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 Overhaul member and you agree to release us from any and all liability associated therewith. We encourage you to report all member-to-member 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.
24. Prohibited and Restricted Items.
You may not list any shipment on our site that violates any applicable law, statute, ordinance, regulation or prohibited items. Prohibited items are hazardous or dangerous goods that may pose a danger to health, safety, or property while being transported (such as explosives, radioactive materials, flammable gases and solids, and toxic substances). Hazardous goods that cannot be shipped through the mail or commercial carrier are not allowed on Overhaul. The few hazardous materials that lawfully may be transported under certain conditions (if they are properly packaged and labeled) may be listed on Overhaul – provided that the listing contains a clear notice of the hazardous nature of the material and a description of the planned method of shipping that complies with the law. For details on particular hazardous substances and transportation requirements in the US, see the U.S. Postal Service Publication 52. For details on particular hazardous substances and transportation requirements outside of the U.S., please consult your local postal authority and/or regulatory agency. Restricted Items: Prohibited regulated or perishable goods. These are items considered restricted or perishable by the U.S. Postal Service which generally do not pose a danger to health, safety, or property while being transported, but their transport is regulated or banned for public policy reasons. Generally, restricted or perishable items that can lawfully be transported by mail or commercial carrier are permitted on Overhaul (see U.S. Postal Service Publication 52 for additional details). Full responsibility rests with the consigner to comply with all postal and non-postal laws and regulations that relate to the mailing of 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.
As a result of the performance of this 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 Agreement. Any disclosure of Our Information to a third party specifically including a direct competitor is strictly prohibited and will be vigorously challenged in a court of law. All obligations contained herein shall survive the termination of this 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.
“Confidential Information” means (a) all information identified as confidential or proprietary, and (b) all information that should reasonably be understood by to be proprietary and confidential because of legends or other markings, the circumstances of disclosure or the nature of the information itself, in each case disclosed by a disclosing party hereunder, whether before or after the Effective Date. Overhaul’s Confidential Information includes, without limitation, the features, functionality and manner of operation of the Platform. Customer’s Confidential Information includes, without limitation the Customer Data. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (i) is now available or becomes available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s). The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or agents with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure. It is understood that such Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein. Notwithstanding the foregoing, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure.
26. Record Keeping/Audit.
Overhaul reserves the right to keep all records of any and all transactions and communications between you and other members for administration purposes in accordance with all applicable laws and regulations.
During the term of this Agreement you shall not solicit to hire nor hire our employees of whom you become aware of through the performance of this Agreement. Furthermore, you shall not otherwise interfere with any of Overhaul’s other business relationships including but not limited to those with other Overhaul members. Specifically, you shall not knowingly, directly or indirectly, solicit or attempt to solicit, divert, and/or send marketing content to any Overhaul member in which you initially constituted a relationship through Overhaul.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Overhaul, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Intellectual Property Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and waive all moral rights to, and Overhaul is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Overhaul is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Remedies for use of our Services that violate this agreement include, but are not limited to, the immediate removal your shipment(s), offers, bids and/or profile, notifying our members of your actions, issuing a warning, temporarily suspending your membership, terminating your membership, and refusing to provide our Services to you.
30. Disclaimer of Warranties.
Your use of this Site and/or the Services is at your own risk. The Site and the Services have not been verified or authenticated in whole or in part by Overhaul, and they may include inaccuracies or typographical or other errors. Overhaul does not warrant the accuracy of timeliness of the Services or the Site. Overhaul has no liability for any errors or omissions in the Site, whether provided by Overhaul, our licensors or suppliers or other users.
OVERHAUL, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY INTELLECTUAL PROPERTY CONTENT RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE INTELLECTUAL PROPERTY CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND INTELLECTUAL PROPERTY CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. OVERHAUL DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. OVERHAUL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/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. OVERHAUL DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE PLATOFRM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT OVERHAUL GIVE SHALL CREATE A WARRANTY. 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.
31. Limitation of Liability.
OVERHAUL SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY INTELLECTUAL PROPERTY CONTENT TO OR FROM THIS SITE. IN NO EVENT SHALL OVERHAUL BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF OVERHAUL KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OVERHAUL’S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE OR THE SERVICES EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS $100 OR (B) AMOUNTS PAID OR PAYABLE BY YOU TO OVERHAUL IN THE SIX (6) MONTH PERIOD PRIOR TO THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
OVERHAUL WILL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF OVERHAUL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event WILL OVERHAUL’S AGGREGATE liability to CUSTOMER for damages ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICE, EXCEED THE AMOUNT CUSTOMER PAID FOR THE SERVICE, IF ANY, IN THE three (3) MONTHS PRECEDING THE CLAIM. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
You agree to indemnify and hold Overhaul and our officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your negligence, breach of this Agreement, violation of any law or the rights of a third party or Overhaul’s use of Submissions.
33. Legal Compliance.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Overhaul Service and your listing, shipping, transporting, and solicitation of offers to ship and transport items.
34. Trademark and Domain Name Protection.
The Overhaul Services contain trademarks, trade names, trade dress, service marks, domain names or other indicia of ownership (collectively the “Marks”) owned or licensed for use by Overhaul. Unless otherwise agreed to in an Addendum to this Agreement, you agree that no right, property, license, permission or interest of any kind in or to the Marks is or is intended to be given or transferred to or acquired by you pursuant to the execution, performance or non-performance of this Agreement or any part thereof. you shall in no way contest or deny the validity of, our right of title to or license of use for, the Marks, and you shall not encourage or assist others directly or indirectly to do so, during the lifetime of this Agreement and thereafter. you shall not utilize the Marks in any manner that would diminish their value or harm their reputation. you may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Services without express written consent. you may not use any meta tags or any other “hidden text” utilizing Overhaul’s name or trademarks without the express written consent of Overhaul. You shall not use or register any domain name that is identical to or similar to any of the Marks.
36. Electronic Communications.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from Overhaul. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with Overhaul. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
37. Governing Law and Arbitration.
THIS AGREEMENT AND YOUR USE OF THE SERVICES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. Any legal claim arising out of or relating to this Agreement or our Services, excluding legal action taken by Overhaul to collect our fees and/or recover damages for, or obtain an injunction relating to, the Overhaul operations, intellectual property, and our Services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, excluding the AAA Supplementary Rules for Class Arbitrations. The arbitration shall be conducted in Austin, Texas, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.
Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each party may seek injunctive relief in any court of competent jurisdiction. The parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
38. Waiver of Class and Collective Claims.
You and Overhaul agree that claims will be arbitrated only on an individual basis and that both you and Overhaul waive the right to participate in or receive money or any other relief, to the maximum extent permitted by law, from any class, collective, or representative proceeding. Any arbitrator hearing your claim may not: (i) combine more than one individual’s claim or claims into a single case; (ii) participate in or facilitate production of class-wide contact information or notification of others of potential claims; or (iii) arbitrate any form of a class, collective, or representative proceeding
39. Arbitration Opt-Out.
You shall have the right to opt out of this Agreement to arbitrate by providing written notice of its intention to do so to Overhaul at P.O. Box 660027, Austin, Texas 78766 within sixty (60) days of the execution of this Agreement.
40. Local Laws; Export Control.
Overhaul controls and operates this Site from its headquarters in the United States of America and the Services may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
You may not assign this Agreement without Overhaul’s prior written approval. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by 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 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 involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of this Agreement.