Terms of Service
In this terms of service agreement:
Access Limits - means the limits on the Customer’s use of Locate Load specified in clause 4 as varied from time to time.
Affiliates – means any entity at least thirty (30%) percent of whose stock or other security interest, which confers voting rights for the election of directors or other similar voting or management rights, is owned directly or indirectly by or is controlled by or under common ownership with either party, this extends to external or independent consultants, financial or legal advice commissioned directly by either party.
Agreement – means legally binding agreement or contract made between two parties that reach an understanding about a particular issue, including their obligations, duties and rights.
Assignments – means the transference of a right, interest or title, or the instrument of a transfer.
Business Day – means a day, Monday to Friday which is not a Saturday or Sunday or a public holiday in Sydney, New South Wales.
Business Hours – means a day 9.00am to 5.30pm, Eastern Standard Time, During a Business Day.
Commencement Date - means the date of execution of this agreement or such other date as agreed by the parties.
Confidential Information - means all information of a confidential nature including all concepts, know-how, ideas, data, inventions, trade secrets and business or other information claimed as confidential, whether in material or non-material form disclosed by a party (Disclosing party) to the other party (Recipient), but does not include information;
(a) Which is or becomes part of the public domain other than as a result of a breach of this agreement by the Recipient;
(b) Which is or becomes lawfully available to the Recipient from a third party lawfully in possession of it and not under an obligation of confidentiality to the Disclosing party; or
(c) Which is known by the Recipient before entering into this agreement (as shown by its written records) other than as a result of disclosure by the Disclosing party.
Consumer Price Index (CPI) – means a measure of the average price of consumer goods and services purchased by households. It is a price index determined by measuring the price of a standard group of goods meant to represent the typical market basket of a typical urban consumer.
Content - means the content provided by or in conjunction with Provider and the Customer, and integrated with Locate Load, including without limitation documents, know-how, methodologies, and all intellectual property.
Customer Services - means the services specified within this agreement to be provided by the Customer to enable Eclectic Webware Solutions to provide the Services.
Documentation - means any operating manual or other printed material referred to in Schedule (Functionality), which is designed to assist or supplement the understanding or application of Locate Load and includes any copy of a manual or other material either in hard or softcopy.
End User – means the final or ultimate user of a system from any organisation that has signed a “User Agreement”. The end user is the individual who uses the product and service, including employees, company representatives and or agents, after it has been fully developed and marketed.
Enhancement - means a development, modification, improvement, variation or change made by the Provider to Locate Load which may alter, improve or enhance the performance of Locate Load but which may not alter or add to the functionality of Locate Load.
Error - means an event in respect of Locate Load, which causes an error message to be displayed to a User.
Fee - means the fees to be calculated in accordance with the rates or alternatively the fixed fees set out within your individual signed agreement and modified in accordance with the provisions within this agreement.
Force Majeure - means a circumstance beyond the reasonable control of the parties, which results in a party being unable to observe or perform on time an obligation under this agreement other than an obligation to make payment. Such circumstances will include but will not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damages, sabotage and revolution, failure of utilities including power supply and strikes.
GST - carries the meaning prescribed in the GST Act.
GST Act - means the Act known as A New Tax System (Goods and Services Tax) Act 1999.
Implementation - means the implementation of Locate Load web service.
Implementation Period - means the period to be agreed between the parties during which Implementation will take place.
Initiation Date - means the date referred from first accessing the service.
Insolvency Event - means in relation to a party;
(Receiver appointed) - A receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertaking of the party;
(Payments suspended) - The party suspends payments of its debts generally;
(Unable to pay) - The party is or becomes unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(Arrangements with creditors) - The party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; or
(Winding up) - An application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator to the party or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the party otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights - means all statutory or other proprietary rights in respect of copyright, trademark, design, patent, circuit layout rights, Confidential Information, trade, business or company names and any rights to registration of such rights, whether created before, on or after the date of this agreement;
Internet Information Services (IIS) – is a powerful Web server produced by Microsoft which that provides a highly reliable, manageable, and scalable Web application infrastructure for all versions of Windows Server 2003. IIS helps organizations increase Web site and application availability while lowering system administration costs. IIS supports the Microsoft Dynamic Systems Initiative (DSI) with automated health monitoring, process isolation, and improved management capabilities;
Locate Load Clearing Account – means such account as is specified by Locate Loan for the receipt of funds from time to time.
Module - means a complementary program, which adds specific or extra functionality to Locate Load and which is designated a “Module” by Provider.
Parties - means the parties to this agreement and their respective successors and permitted assigns. Party means either one of them as the context requires.
Patch - means new or altered version of software to update, improve and or meant to fix a bug, fault or other operating problems with a computer program and may include, inter ali, a fix for bugs, the replacement of code for faulty graphics or this can range from fixing bugs to replacing graphics, to improving the usability or performance of a previous version.
Service – means the on-line service and system providing access to the Locate Load software via the internet, an extranet or other on-line connections and any Modification, Alteration, Enhancement, New Release, Patch Release, or Module provided to the Customer by Provider, as described in Schedule F.
Software Upgrades – means any upgrade, which is the process of replacing an older version of the software with a newer version of the software which including either new functionality or enhancements of the current software, or a totally new version.
Spamming – means it's the wrongful use (under the laws of any jurisdiction in which users access the Portal) of the abuse of any electronic communications medium to send unsolicited messages to someone in bulk, extends to any unsolicited bulk electronic communication, to be targeted, non-commercial, or wanted by the receiver.
Term - means the period of this agreement as set out within this contract.
User - means a person who accesses or uses Locate Load or receives information from or submits information to Locate Load.
Valid Tax Invoice - means a tax invoice in the form required by the GST Act.
Works – means any work, subject matter other than works (as each of these terms is defined in the Copyright Act 1968 (Cth) (as amended)), invention, drawing, design, model, contrivance, structure, software, specification, improvement, discovery, creation, idea, concept, formula, process, contribution or other Intellectual Property Right, developed, created, made, discovered or conceived in the course of the provision of the Services or in activities undertaken by Provider preparatory, subsequent or ancillary to the provision of the Services.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
(Singular) - The singular includes the plural and conversely;
(Gender) - A gender includes all genders;
(Person) - A reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity and conversely;
(Clause/Schedule) - A reference to a clause or schedule is to a clause of or schedule to this agreement;
(Successors and Assigns) - Reference to any party to this agreement or any other agreement or document includes the party’s successors and permitted assigns;
(Legislation) - A reference to any legislation or to any provision of any legislation includes any amendment, consolidation or replacement of it, and all regulations and statutory instruments issued under it;
(Conduct) - A reference to conduct includes, without limitation, any omission, statement or undertaking, whether or not in writing;
(Party) - A reference to a party is a party to this agreement or any person who executes a deed of accession to this agreement;
(Business Day) - Any payment by a party under this agreement is due on a day which is not a Business Day, the due date will be the next Business Day in the same calendar month or, if none, the preceding Business Day.
1 Acceptance of Terms
When using the Service (including completion of the registration process to become a USER), you must agree to the terms of service of this Agreement, which EWS in its discretion may change from time to time. We will post a notice on our web site and where possible an email will be sent to you, informing you of any changes to the Terms or Service. Your continued use of the Service will signify your acceptance of the changed Terms. Unless explicitly stated otherwise, any new features that augment or enhance the Service shall be subject to this Agreement. This Agreement may not otherwise be modified except in writing and signed by an authorised officer of Locate Load.
The purpose of this Agreement is to formalise an arrangement between the Provider and the Customer to deliver a new service and specific levels of support services and at an agreed-upon costs, whereby the Provider’s intention of supply and continue to develop a transport and logistics industry specific Load Dispatch Matching, Compliance and Communications Portal in consultation with the Customer. This document is intended to provide details of the provision of the services relating to the Locate Load system (“the System”) licensed to the Customer, thereby improving the transparency, standards and develop a leading edge web based technology for the Customer and other interested parties within the industry for the long-term benefit of all.
3 Use of service
The Service is only available to individuals or companies (or other legal entities) who can form legally binding contracts under applicable law. Individual Subscribers must be at least 18 years of age. Locate Load may, in its sole discretion, refuse the Service to anyone at any time and without reason.
4 Services provided
4.1 USER – Transport Companies and or Drivers are entitled to accept, post and search for available loads and use any other freely offered services integrated within our web site.
4.2 User - Dispatchers are entitled to post freight and use any other freely offered services integrated within our web site.
5 Access limits
At the Customers’ acceptance of this Agreement, the Provider will provide you and any approved users identified by you with a login access to the Locate Load system for the term of the Agreement, under the name of www.locateload.com.
The Customer may only access and use:
5.1 Locate Load access limits - Locate Load in accordance with any Locate Load terms and conditions (including, without limitation, any restriction on the number of Locate Load Users); and
5.2 Number limits - The Provider gives the customer unrestricted license allowing an unlimited number of users, to the service.
6 Reservation of rights
Locate Load reserves the right to modify in any manner, at any time, the covered services. USER’s understand and agree that it has no claims, causes of action or rights against Locate Load for modifications of the covered services. Locate Load reserves the right at any time to discontinue the covered services. USER’s understand and agree that it has no claims, causes of action or rights against Locate Load or EWS for discontinuance of the covered services.
7 Registration and ongoing obligations
If you register with us, you agree to:
7.1 Provide true, accurate, current and complete information about your organisation, (or yourself in the case of an individual users) Drivers, Vehicles and other information required by the system as prompted by our websites, or, where a Locate Load Sales Consultant assists you with the registration, you will be asked to agree to these terms before acceptance of your membership; and
7.2 Maintain and promptly update the member information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, Locate Load has the right to suspend or terminate your registration and/or refuse any and all current or future use of the Service (or any portion of it). If you have registered with us on behalf of a company or other entity, then you represent and warrant that you have the authority to bind such company or other entity to the Terms.
8 Locate Load Service
Upon the Customers’ acceptance of these terms, the Provider will provide you and any approved users identified by you with a loginaccess to the Locate Load system for the term of the Agreement, under the name of www.locateload.com.
8.2 Copies of Locate Load Documentation by Customer
The Customer may make a reasonable number of copies of Locate Load Documentation required for Users of the Locate load service.
8.3 Accuracy of Data
The Provider will not be responsible for the accuracy of any Customer, Client, Drivers or Users Content entered onto Locate Load andsuch responsibility will lie, and remain, with the Customer and all its Users. The Customer will indemnify, and keep indemnified the Provider in relation to any liability, loss, expense or cost resulting from any claim or action arising out of any error or inaccuracy in Customer Content entered into Locate Load system.
8.4 Content Storage
8.4.1 The Provider will procure that all the Customer Content is stored for a period of five (5) years, after which time it will be deleted unless otherwise agreed by the parties, or;
8.4.2 If the agreement is terminated the data will be made available for a period of no longer than thirty (30) days.
8.5 Back Up and Recovery Procedures
The Provider must procure that:
8.5.1 (Specifications) - Locate Load is delivered in accordance with the specifications set out in Schedule A.
8.5.2 (Back-up and Recovery) - Back up facilities and recovery procedures with respect to Locate Load are provided at all times in accordance with the maintenance and service levels set out in Schedule A , item 4.
The Provider may provide Locate Load New Releases and Locate Load Patch Releases to the Customer and the Customer acknowledges and accepts the provision of any Locate Load New Release or Locate Load Patch Release.
8.7 New Releases
In respect of any Locate Load new release the Provider will attempt to notify, at least two (2) Business Days prior to the introduction ofthe Locate load new release and at no charge to the Customer, provide notice of the Locate Load new release including details of thegeneral nature of the Locate Load new release and of any material change in the use of Locate Load that will occur as a result of the Locate Load new release.
8.8 Patch Release
The Provider will provide reasonable notice to the Customer of any Locate Load release, provided that where the Locate Load patch release is required in order to correct Defects or ensure the continued operation of Locate Load service in accordance with the terms of this agreement and it is not practicable to provide such notice prior to the introduction of the Locate Load patch release, Provider will be excused from any failure to provide such notice in advance.
During the term of this agreement, the Provider may issue new releases or upgrades to the Software, in which cases such new releases or upgrades will be provided to the Customer free of charge including and understanding that;
8.9.1 any upgrades or changes requested by You (other than patches to correct a bug, fault or other problem); or
8.9.2 new releases or upgrades to the Software used to build a Portal which has specifically been purpose built for You with no commercial value to any other clients or users will be discussed with You prior to any changes being made, may incur a charge in some cases.
8.10 No Title
This license Agreement confers no title or ownership in the Software and is not a sale or any other transfer of any rights in the Software. This Software, and all of the intellectual property in it is owned by the Provider, and is protected by copyright law and international copyright treaty in all jurisdictions, where the intellectual property associated with the Software is registered or not.
8.11 Non-commercial use
You agree that you will not use the software to conduct Transport dispatching, matching and compliance on behalf of another individualor organisation, unless the organisation is directly owned by the Customer, is a client of the customer, sub-contractor of the customer or an approved user, with supporting documentation.
8.12 Acceptable use
The Software may be used only for the purposes set out in this Agreement and for no other purposes. Use for any other purpose(s) will result in immediate termination of this Agreement by the Provider.
8.13 Additional Modules
The Provider may notify the Customer of any further Locate Load Modules available for access by the Customer including details of thecosts associated with access to such Locate Load Modules and any variation, or addition, to the terms or conditions that will apply as the result of such access (including, without limitation, any change to any fee or charge payable under this agreement).
8.14 No Obligation to Accept
The Customer will be under no obligation to accept any Locate Load Modules of which it is notified in accordance with clause 8.13.
8.15 Customer Warranty
The Customer warrants that it owns or holds the required licences in respect of the Third Party Software to operate Locate Load and that it will maintain such ownership or licences for the term.
8.16.1 Locate Load will provide invoicing and collection services to Customer and the Customer hereby authorises Locate Load to act as its agent for the purposes of providing invoices to end users of the Locate Load service (Clients).
8.16.2 Locate Load will issue tax invoices to Clients as the agent for the Customer and such invoices will designate the Locate Load Clearing Account as the payee account for such payments.
8.16.3 Locate Load will account to the Customer monthly for payments received from Clients into the Locate Load clearing account.
8.16.4 The Customer acknowledges that it shall not be entitled to any interest that might accrue on the Locate Load Clearing Account and all such interest (if any) shall be the sole property of Locate Load.
9 Fees and Payments
9.1 In consideration of being granted a password and username and being granted access to the Service you agree to pay to Locate Load for any fees generated for use of the service. If a fee is payable, the pricing and options appear within your user agreement.
9.2 As Locate Load is a transaction fee based website fees are payable as they fall due and invoice statement is posted to the user company. All Payments for the optional SMS Services are prepaid at $0.25 each (inclusive of GST) in minimal increments of ten ($10) dollars in advance.
9.2.1 Payments can be made by direct deposit, credit card using the ANZ online payment facilities or cheque, allow up to five(5) business day for deposited funds to clear. All Users must sign and return a user agreement via email or facsimile.
9.2.2 Should payment not be made or credit card payment cancelled or stopped, your access rights may be suspended until full payment of the overdue amount is received and cleared.
9.2.3 USERS, at their discretion, may cancel their access to the service at any time without cause. (See below for instructions on how to cancel the service.) However, all outstanding monies must be paid upon cancellation.
9.3 All Invoices are system generated and emailed or posted to you directly each month.
9.4 All USER’s agree in advance, that it is a condition of use of this service, that each and every USER pays all parties in a timely manner as stipulated by the terms and conditions governing both those companies you have commissioned to move goods on your behalf.
9.5 All Transports Companies engaged in the transportation of grain agree in advance to the terms and conditions of the NACM (NACMA_&_LBCA_Bulk_Freight_of_Goods_Contract_-_15_Nov_08.pdf ) or the individual terms and conditions attached to the specified load.
10 Outstanding Fees
Every effort will be made by Locate Load to collect payments from the USER however; Locate Load may, at its sole discretion, engage a collection agency to collect any overdue payments on our behalf. In some jurisdictions, the costs of engaging a third (3rd) party to collect outstanding payments can be passed to the customer. It is your responsibility to pay us for services we provide to you and by the due date.
11 Service included within the access
The access includes the following;
11.1 Unlimited online searches and use of the Locate Load.com website and;
11.2 Unlimited use of the e-mail notification service and;
11.3 Unlimited posting of Dispatching load notices.
11.4 Access as a single USER. Additional USERS may be established and may attract additional charges according your requirements.
12 Service Availability
We will guarantee a minimum up time of 95% during eastern standard business hours of 8.30am to 5pm and a minimum of 95% up time between 5pm and 8.30am. System availability below this level is considered a breach, but this guarantee does not apply if there is a failure or fault outside the System which impacts adversely on it including but not limited to:
(a) a telecommunications failure;
(b) failure of the PCs or other devices which you use to access the system;
(c) a power failure; or
(d) force majeure (see clause 31).
13 Fees not included within the load-matching fee
This access does NOT include any SMS that you have requested to be sent or received by you as the USER. SMS will be charged only for sending and SMS, which is in addition to your matched load fee at a rate specified on the pricing webpage or as stipulated within your user agreement.
14 Free services
In some circumstances, “locateLoad.com” website portals are provided to organisations where - Dispatchers whom pay Locate Load a fee to conduct “load” communication service with their drivers or sub-contractors or transport companies under their own website. Access to the Service may be provided to the USER without charge unless otherwise stated. The provisions of this clause remain where fees apply.
15 No direct or indirect solicitation outside the website
As USER either Dispatchers, DRIVER’s and or Transport Companies of Locate Load, you agree that you will NOT engage directly or indirectly in back-solicitation as a result of any information contained within the online load matching service. Should Locate Load determine that a USER has engaged in back-solicitation, Locate Load reserves the right to immediately cancel that USER’s agreement and access WITHOUT refund (if a refund applies) and may seek financial compensation plus other damages.
16 User name, password and security
After successful completing a USER Agreement, a USER will receive an e-mail which comprises of a selected username and password. Please ensure that you comply with the following conditions;
16.1 The USER is solely responsible for maintaining the confidentiality of the user name and password and you are fully responsible for ensuring your details remain confidential to you;
16.2 In addition, you undertake to ensure that those entrusted with any additional general user accounts are also familiar with these Terms;
16.3 You agree that you as the Member will be wholly responsible for all actions taken and any losses, costs or claims whatsoever incurred as a result of usage of the services provided by Locate Load;
16.4 USER agrees to notify immediately of any unauthorized use of your account or any other breach of security including that of your general user accounts, and any unauthorised use of your password or username;
16.5 Ensure that you properly exit the Website at the end of each session. Locate Load will not be liable for any loss or damage arising from your failure to comply with this term;
16.6 You agree not to sell, transfer, or assign your use of or access to this web site to any third (3rd) party;
16.7 USER is solely responsible for any and all activities that are conducted through your account;
16.8 Locate Load will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge; and
16.9 You may not use anyone else's account at any time, without the permission of the account holder.
17 Online content
17.1 The USER understands and agrees that Locate Load reserves the right, but has no obligation, to delete, review, and/or edit any information, data, text, software, photographs, images, graphics, messages or other material ("Content") by our sole discretion; and
17.2 USER may not modify, copy, distribute, broadcast, transmit, reproduce, publish, mirror, frame, license, transfer, sell, or otherwise use any information or material obtained by you or through this web site unless Locate Load makes it clear that you can do so.
The content within our websites, such as text, graphics, images and other material ("Material"), are protected by copyright under foreign laws. Unauthorised use of the Material may violate copyright, trademark, and other laws. You must retain all copyright and other proprietary notices contained in the original Material or any copy you make of the Material. You may not sell or modify the Material or reproduce, display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose. If you breach any of these Terms, your permission to use the Material automatically terminates and you must immediately destroy any copies you have made of the Material. The on selling of content made available to you on Locate Load websites or through email or SMS notification to you is strictly prohibited and will result in immediate suspension or cancellation of the Service and possible prosecution.
Locate Load will only use any personal information you provide to us in accordance with our Privacy Statement. The complete terms of our Privacy Statement are provided on our websites. However in brief; It is our policy that personal information, such as your name, postal and e-mail address or telephone number, is private and confidential. Accordingly, the personal information USER provides is stored in a secure location is accessible only by designated staff and is used only for the purposes for which you provide the information. For example, when USER posts an available load, or truck, on Locate Load, the load specification and not your contact information specified in creating your account are accessible on Locateload.com system by other users.
19.1 Ownership of Data
All data loaded by You, Users and Clients, (i.e. all information relating to the advertising of loads and any response to those loads) on to our servers shall:
19.1.1 remain Your property;
19.1.2 be subject to any decisions made by You regarding the status of that data; and
19.1.3 be governed by the data protection or privacy laws which are in force in those jurisdictions in which You operate. Such laws shall also govern any data, which is released to the public domain. However, upon any load information being released in the public arena, then this information shall give duel ownership to the Provider;
19.1.4 The Provider will have dual ownership of all data;
19.1.5 Upon a breach as stated within this agreement by the Customer, and resulting in a termination of the agreement all data own by Customer is automatically transferred to the Provider;
19.2 No Spamming
The Provider has a zero-tolerance policy against email 'spamming'. As a condition of using our servers to conduct electronic transport and logistics, You expressly agree not to violate any provision of the data protection, privacy, consumer protection, electronic commerce or other applicable or relevant legislation or regulations in force in any jurisdiction in which the Portal(s) will operate with respect to the collection, dissemination, reporting or publication of data, including any data acquired by you from third parties.
The Provider reserves the right to perform statistical analysis, to analyses all of your data contained within our servers. We do this to in order to enable us to:
19.3.1 measure the effectiveness of our systems, to;
19.3.2 optimise server and website performance, and or to;
19.3.3 validate and ensure license compliance with this Agreement.
The Provider will not use or collect any personally identifiable data in the analysis process.
20 Warranties & Indemnities
20.1 Warranty of Title
The Provider hereby represents and warrants to the Customer that the Provider is the owner of the Software, or otherwise and has the right to grant to the Customer the rights set forth in this Agreement. Therefore, the Provider indemnifies the Customer, for any third party breach of the intellectual property. The Customers’ sole remedy, in the event any breach or threatened breach of the foregoing representation and warranty, the Provider shall, at its option, either;
20.1.1 procure, at the Providers expense, the right for the Customer to use the Software; or
20.1.2 replace the Software or any part thereof that is in breach with Software of comparable functionality that does not cause any breach; or
20.1.3 refund to the Customer the full amount of any fees paid by you to the Provider, limited to individual load or trip, which is in dispute.
20.2 Customer Warranty
20.2.1 The Customer warrants that it owns or holds the required licences in respect of the Third Party Software to operate Locate Load and that it will maintain such ownership or licences for the term.
20.2.2 The Customer will comply with any and all the terms and conditions of any licence of any Third Party Software or any other obligation arising out of the use of any Third Party Software.
20.3 Provider’s Limited Warranty Statement
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE PROVIDERS ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR USE OF THE SOFTWARE;
The Customer shall indemnify and hold the Provider harmless for any and all claims, losses, damages and liabilities whatsoever arising from any action or claim asserted by any third party for any violation of any data protection or privacy law in force in any jurisdiction in which the Portal(s) operate. All Users of the portal will indemnify both the Provider and the Customer as part of registration process.
20.5 Power and Authority
Each party warrants that it has the power and authority to enter into this agreement and to fulfil its obligations and comply with all terms and conditions under this agreement.
21 No release of information to third (3rd) parties
Personal information will not be released to third (3rd) parties except to further the purpose for which you provide the information, unless the release is required by law or is pertinent to judicial or governmental investigations or proceedings. There are no other circumstances under which we will provide or sell personal information to third (3rd) parties.
22 Submission of load bids
For the purpose of this Agreement, Load bids are any offer for supply of a service that you make to a specific response to a specified load notice from a Dispatching Party that you may access via the Service. You acknowledge and agree to the following:
22.1 By agreeing to these terms and conditions, you acknowledge that Locate Load can not and will not act in any capacity (including but not limited to your agent or intermediary) with respect to influencing or amending the rules, practices or procedures of the Dispatching Party including (but not limited to) deadlines;
22.2 If you are the successful Bidder in relation to any Load notice you will be automatically notified by the Locate Load system either by email, notice board, SMS or combination depending upon which service you have agreed to subscribe too; and
22.3 In the event a USER is in dispute with a Dispatching Party, the USER hereby release Locate Load (and its officers, employees, agents and associates) from any and all claims, demands and damages whatsoever and hereby indemnify Locate Load in respect of any claims, demands and damages whatsoever made against Locate Load by a third (3rd) party (including a Dispatching Party) in relation to the Service provided.
23 Restriction on use
You agree that you will not use the Website to:
23.1 Impersonate any person or entity or misrepresent your or anyone else’s affiliation with you or anyone else;
23.2 Upload, post email or otherwise transmit any unsolicited or unauthorised advertising, or promotional material;
23.3 Upload, post email or otherwise transmit any data file containing software viruses or any other computer code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
23.4 Act in a manner that negatively affects the ability of any USER, Member, Dispatching Party, non-member user or Locate Load itself (together "User") to engage in reasonable usage of this Website;
23.5 Interfere with or disrupt the services of the Website; transgress any applicable regulations, rules or statutory provisions of local laws or any other relevant jurisdiction or any order or rule of any court of competent jurisdiction;
23.6 Furthermore, it is in Locate Loads sole discretion to determine that a transgression of the terms and conditions has occurred. Locate Load may pursue any of its legal remedies, including but not limited to immediate cancellation of a USER’s account. Locate Load reserves the right (in its sole discretion) to take any actions that it believes prudent or necessary to minimise or eliminate its potential liability, including but not limited to the release of any Subscriber’s information to a third (3rd) party;
23.7 The Customer must not, without Provider’s prior written consent detailing the nature of the exception;
23.7.1 No Sublicensing: Transfer, sub-license, sell, rent, lease, lend, duplicate, or otherwise commercialise the whole or any part of Locate Load including giving any User access;
23.7.2 No Removal of Marks: Remove, alter or obscure any copyright, trademark, patent, icon or notices that appear on Locate Load;
23.7.3 No Tampering: Tamper with any device or code that operates as a disabling or limiting function to enforce the terms of this agreement, prevent software piracy, prevent unauthorised use, or to enforce Locate Load Access Limits;
23.7.4 No Altering of Templates: Alter, create or amend Locate Load templates; or
23.7.5 No Reverse Engineering: Reverse engineer (including, without limitation, reverse assemble or reverse compile) or directly or indirectly allow or cause a third party to reverse engineer the whole or any part of Locate Load and must not attempt to access, copy, modify, alter or tamper with Locate Load in any manner other than as expressly authorised by this agreement or allow any other person to do any such act.
24 Locate Load terminating your service
You agree that Locate Load, in its sole discretion, may terminate your USER password and username designation or use of the Service, and remove and discard any information or data (including load postings or load bids) you provide to us or another USER for the following conditions but not limited too:
24.1 You have transgressed this Agreement;
24.2 Use of Locate Load for any unlawful purpose or in an unlawful manner;
24.3 USER's failure to comply with all local, state and federal laws and regulations applicable to the operation of USER's business;
24.4 USER's intentional input of false information into Locate Load and;
24.5 USER's repeated input of inaccurate information into Locate Load;
24.6 USER'S failure to fulfil financial or other obligations to other USER's of Locate Load;
24.7 The receipt by locate Load of a complaint(s) against USER; and
24.8 Locate Load may terminate your service also in accordance to clause 16 “No Direct or Indirect Solicitation outside the website”. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Locate Load may immediately deactivate or delete your account and related information and files in your account and/or bar any further access to such files or the Service. Furthermore you agree that Locate Load shall not be liable to you or any third (3rd) party for any termination of your access to the Service. In addition, it is in Locate Loads sole discretion to determine that a transgression of the terms and conditions has occurred. Locate Load may pursue any of its legal remedies, including but not limited to immediate cancellation of a USER’s account, and or a financial claim for any loss monies or income. Locate Load therefore reserves the right (in its sole discretion) to take any actions that it believes prudent or necessary to minimise or eliminate its potential liability, including but not limited to the release of any USER’s information to a third (3rd) party. Finally, your access to Locate Load is non-refundable (where a fee is payable) and non-transferable, if terminated for the above reasons.
25 Cancellation of the service
If a USER wants to cancel their access to the service, the USER must contact Locate Load using the Contact Us tab on the website, email or submit a written letter informing Locate Load of your intent to cancel your service. USER will not be billed again and their account will automatically close after their current billing cycle is finished, and all outstanding monies have been paid in full. We do NOT accept cancellations over the telephone.
26 No Reverse Engineering
The Customer agrees not to reverse engineer (including, without limitation, reverse assemble or reverse compile) or directly or indirectly allow or cause a third party to reverse engineer the whole or any part of Locate Load and must not attempt to access, copy, modify, alter or tamper with Locate Load in any manner other than as expressly authorised by this agreement or allow any other person to do any such act.
27 Confidential Information
EWS and You and each of their representatives and agents shall maintain, and cause any third party involved in the delivery, installation or operation of the Software to maintain the Confidential Information of the other party in the strictest confidence and trust and shall take all reasonable measures to prevent the unauthorised use or disclosure of such Confidential Information, except with the written consent of the owner of such Confidential Information in each instance, provided that either Party may make disclosures required by a court of law or other governmental agency. EWS and You and each of their representatives and agents agree to use the Confidential Information of the other Party solely for the purpose of carrying out its obligations under this Agreement.
28 Intellectual Property Rights
28.1 The Customer acknowledges and agrees that all moral rights and Intellectual Property Rights arising out of Locate Load at all times remain the property of Provider (or its licensors as the case may be) and nothing in this agreement shall give the Customer any right, title or interest in Locate Load or any related documentation or service.
28.2 You acknowledge and agree that the Software ideas, methods of operation, processes, know how, routines, code, listings, sub-systems, graphical interfaces and modules included in the Software are proprietary materials which contain valuable trade secrets of the Provider and that all Intellectual Property Rights to the Software are owned exclusively by the Provider, whether such Intellectual Property Rights are registered or not and in any jurisdiction.
28.3 The Customer acknowledges and agrees that the Provider shall retain title to all Intellectual Property Rights related to the Software, copies of the Software (including those made for back-up purposes), and upgrades, modifications or enhancements. If the Customer makes or commissions any modifications or enhancements, The Customer shall assign them to the Provider all Intellectual Property Rights to the modifications or enhancements provided that the Customer shall retain a licence to use, copy and modify any modifications during the term of this Agreement. Modifications or enhancements may be used in conjunction with the Software only in compliance with this Agreement.
28.4 The Customer shall take reasonable precautions (including the precautions used for Your own Confidential Information) to prevent the unauthorised use or disclosure of the Software or any source code provided to You under this Agreement.
28.5 Give Effect to Rights: The Customer must execute such documents and perform such other acts as are necessary to give effect to clause 28.
29. Liability of Provider
29.1 No Liability for Consequential Loss or Damage
Except in relation to liability for personal injury (including sickness and death), the Provider is under no liability to the Customer in respect of any consequential loss or damage which may be suffered or incurred or which may arise directly in respect of goods or services supplied pursuant to this agreement (including, without limitation, Provider, Locate Load or the Services) or in respect of a failure or omission on the part of Provider to comply with its obligations under this agreement.
29.2 Limitation of Liability
Subject to the clauses contained within this agreement, any liability of Provider to the Customer for, or arising out of, any breach of this agreement or any breach of a condition or warranty implied by legislation under clause 16 will be limited, at the option of Provider, to one or more of the following:
29.2.1 Goods: If the breach relates to goods;
18.104.22.168 Replacement: The replacement of the goods or the supply of equivalent goods;
22.214.171.124 Repair: The repair of such goods;
126.96.36.199 Replacing the Goods: The payment of the cost of replacing the goods or of acquiring equivalent goods; or
188.8.131.52 Cost of Goods: The payment of the cost of having the goods repaired; and
29.2.2 Services: If the breach relates to services;
184.108.40.206 Resupply: The supplying of the services again; or
220.127.116.11 Cost of Services: The payment of the cost of having the services supplied again, the Customer must indemnify Provider in respect of any liability incurred by Provider.
29.3 Liability for Actual Loss
Notwithstanding the limitation under clause 29.2, if the Provider breaches this agreement and the Customer suffers actual loss as a direct consequence of that breach, the Provider is liable for, and must pay damages in respect of, the actual loss suffered by the Customer limited to the actual fee paid and charged by the Provider relating to the service fee as stated in Schedule C items 4 and 5. The Provider’s liability under this clause is limited to total fees paid by the Customer under this agreement in the two years prior to the occurrence of the breach, which caused the loss. Nothing in this clause limits the Customer’s common law obligation to mitigate its loss.
29.4 No Reliance
Subject to clause 29.5, the Customer warrants that it has not relied and does not rely on any representation made by Provider that has not been stated expressly in this agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Provider.
29.5 Independent Verification
The Customer acknowledges that to the extent the Provider has made any representation that is not otherwise expressly stated in this agreement, the Customer has had an opportunity to independently verify the accuracy of that representation.
30 No Legal Advice
The Customer acknowledges and agrees that:
30.1 Not Designed to Ensure Compliance - Locate Load may be provided to assist the Customer in the conduct of business (or activities) which may include use as a system for monitoring and performing the activities of business and Compliance with laws but is not designed or intended to ensure or guarantee such performance or Compliance. The Customer acknowledges that it remains solely liable and responsible for its business activities and performance and Compliance with laws and must indemnify and continue to indemnify, and hold harmless the Provider in respect of any liability or loss arising out of any failure by the Customer to comply with any law or to adequately conduct or perform any business activity;
30.2 No Guarantee of Accuracy - The legal obligations of any business will vary with their activities and geographic location and the volume of laws, regulations and industry guidelines that may apply in any particular circumstance make it impossible for Provider to guarantee or warranty the completeness, accuracy or currency of Provider Content.
31 Force Majeure
31.1 Locate Load shall not be liable to you for delays and failures in performance resulting from causes beyond our reasonable control, including, but not limited to, acts of god, labour disputes, disturbances, material shortages, or rationing, riots, acts of war, government regulations, communication or utility failures, or casualties.
31.2 Any delay in or failure of performance by either party under this agreement will not be considered a breach of this agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, by not limited to, acts of God, power outages and governmental restrictions.
31.3 Neither Party to this Agreement shall be in default hereunder by reason of its delay in the performance of, or failure to perform, any of its obligations hereunder, other than the Party’s obligations to make payments to the other Party under the terms of this agreement, if such delay or failure is caused by strikes, acts of God, riots, terrorism, civil or military authority, civil disturbance, war, strikes, fires, earthquakes, other catastrophes or other such major events beyond Provider or your reasonable control or without the fault or negligence of the other Party. During the pendency of such intervening event, each of the Parties shall take all reasonable steps to furnish the services required hereunder by other means, and in any event, shall, upon termination, of such intervening event, forthwith resume obligations under this Agreement.
Unfortunately, we cannot always foresee or anticipate technical or other difficulties. These difficulties may result in loss of data or other service interruptions. For this reason, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN ’AS IS’ AND ’AS AVAILABLE’ BASIS. LOCATE LOAD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRRINGEMENT. LOCATE LOAD MAKES NO WARRANTY THAT;
32.1 THE SERVICE WILL MEET YOUR REQUIREMENTS;
32.2 THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
32.3 THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND
32.4 THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, (WHETHER AS PART OF OR AS A RESULT OF A LOAD BID OR OTHERWISE) OBTAINED BY YOU OR ANY USER THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
32.5 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
32.6 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LOCATE LOAD OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
33 Limit of liability and indemnification
33.1 USERS EXPRESSLY UNDERSTAND AND AGREE THAT LOCATE LOAD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LOCATELOAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM;
33.1.1 THE USE OR THE INABILITY TO USE THE SERVICE;
33.1.2 THE COST OF ACQUIRING OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
33.1.3 UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
33.1.4 STATEMENTS OR CONDUCT OF ANY THIRD (3rd) PARTY ON THE SERVICE; OR
33.1.5 ANY OTHER MATTER RELATING TO THE SERVICE.
33.2 Locate Load does not underwrite the identity of any USER, DISPATCHER, DRIVER, TRANSPORT COMPANIES or third (3rd) Party or other user of the website and will not be held liable for any losses, costs or claims whatsoever arising out of any fraudulent or mistaken identity assumed by any party using the website or any unauthorised use of any digital certification issued hereunder;.
33.3 LOCATE LOAD DOES NOT MAKE ANY REPRESENTATIONS OR WARRANT ANY OF THE INFORMATION MADE AVAILABLE BY USER, DISPATCHER, DRIVER, TRANSPORT COMPANIES or THIRD (3rd) PARTIES. YOU AGREE THAT LOCATE LOAD SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, TRANSACTION, TRANSMISSION, SUBMISSION, CORRESPONDENCE, STORAGE, IDENTIFICATION, SCREENING, COMPLIANCE ISSUES, ISSUE OF DIGITAL IDENTIFICATION, UNLAWFUL TRANSACTIONS BY OTHER PERSONS IN CONNECTION WITH OR ARISING OUT OF ANY LOAD MATCHING SERVICE EXERCISE.
33.4 NOTHING IN THIS CLAUSE EXCLUDES LOCATE LOAD’S LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED THROUGH THE NEGLIGENCE OF LOCATE LOAD, ITS EMPLOYEES, SERVANTS OR AGENTS, NEITHER DOES IT SEEK TO EXCLUDE LIABILITY FOR FRAUDULENT MISREPRESENTATION BY LOCATE LOAD.
33.5 The USER also understands and agrees that Locate Load does not offer any representations or warranties, expressed or implied, including, without limitation, any representations or warranties as to;
33.5.1 The willingness of any Dispatcher’s, Driver’s, Agent’s or broker’s to use the USER’s of website;
33.5.2 The accuracy of information or data entered into the website database;
33.5.3 The quality of the transportation provided by any Dispatcher’s, Driver’s, Broker’s, Agent’s listed with the website;
33.5.4 The compliance of any Dispatcher’s Driver, Agent or Broker with local, state or federal laws governing the Dispatcher’s or Driver’s business;
33.5.5 The availability of loads or trucks; and
33.6 Accordingly, the USER agrees that Locate Load is not and will not be responsible or liable for, and USER agrees to hold harmless and indemnify Locate Load from and against any losses, claims, liabilities or expenses of any nature whatsoever incurred by the USER, USER's company, or any Dispatcher, Driver or Driver’s Broker Agent, Broker / Agent’s or Dispatcher's or Driver’s employees, agents or customers where such losses, claims liabilities or expenses pertain to a relationship between USERs and any Dispatcher, Broker or Driver arising out of the USER's use of Locate Load. Such claims in this paragraph include, without limitation, claims for damages caused by input of accurate, inaccurate or false information into Locate Load.
33.7 The USER's relationship between any Dispatcher, or Driver, is separate from and independent of the USER's agreement with Locate Load. USER understands Locate Load does not intend or seek in any manner to participate in any relationship between the USER and any Driver, Broker Agent, independent owner/operator or Dispatcher that arises out of the USER's use of Locate Load, unless otherwise expressed in a signed written agreement between USER and Locate Load.
33.8 Furthermore, Locate Load does not warrant or guarantee or have control over the availability of or accelerate the movement of freight for any particular day or location, nor does it warrant or guarantee or have control over what the rates or payment terms for any accelerated freight will be.
33.9 The USER agrees and understands the relationship of Locate Load to the USER is that of an information resource publisher only.
33.10 In cases of any losses not otherwise excluded by a term of this Agreement, Locate Load’s total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Agreement, or based on any claim for indemnity or contribution will not exceed the sum of a single months access fee paid by you to Locate Load.
34 Limitation of remedies
IN NO EVENT, UNDER NO CIRCUMSTANCES (INCLUDING, BUT NOT LIMITED TO, THE MALFUNCTION OF LOCATE LOAD OR OF THE HOST'S WEB SERVER OR ANY OTHER EQUIPMENT), SHALL LOCATE LOAD BE LIABLE TO THE USER FOR LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
You agree to indemnify and hold Locate Load and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand (including legal expenses and the expenses of other professionals) made by a third (3rd) party owing to or arising out of your breach of this Agreement or the documents it incorporates by reference (including, without limitation use of digital certification for an unauthorized purpose), or your violation of any law or the rights of a third (3rd) party.
No waiver by either party of any breach of terms contained in this Agreement by the other party shall be construed as a waiver of any succeeding breach of the same or any other term or condition.
37 Compliance with laws
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Service and your participation in any posting loads or load Bids, complying with all applicable laws regarding the transmission of technical data exported from the country in which you reside or other relevant jurisdiction.
38 Dispute Resolution
If a dispute arises (including any dispute as to breach or termination by reason of breach but not if the Party seeks urgent interlocutory relief) a Party to this agreement must not seek any court proceedings relating to the dispute unless it has complied with the following procedures:
38.1 The Party claiming that a dispute has arisen to give written notice to the other Party specifying the nature of the dispute;
38.2 The Parties must then endeavour in good faith to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation and expert evaluation; and
38.3 If the Parties do not agree within thirty (30) days of receipt of the dispute notice as to the dispute resolution technique and procedures to be adopted, the timetable for going through the procedures, and the selection and compensation of the independent mediator, then the Parties must mediate the dispute in New South Wales in accordance with the procedures set out in the commercial rules of the Law Society of New South Wales then applicable before an arbitrator to be appointed by the Law Society of New South Wales. The decision of the arbitrator shall be final and binding and conclusive upon the parties hereto and judgment thereon may be entered in any court having jurisdiction.
38.4 The costs of such arbitration shall be paid or reimbursed by the non-prevailing Party.
39 Governing Law
39.1 This agreement is governed by and construed in accordance with the laws in force in the State of New South Wales.
39.2 Any or all disputes arising in connection with this Agreement which cannot be settled by negotiation between the parties or their authorised representatives under clause 39 shall be submitted to the appropriate dispute resolution forum in New South Wales or in such other jurisdiction as the Parties agree with the prevailing party awarded all costs, fees and expenses related to the prosecution or defence (respectively) of such action.
40 No agency
USER’s, MEMBER’s, Locate Load and third (3rd) Parties are each independent contractors, and no agency, partnership, joint venture employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
41 Links to other sites
41.1 Locate Load may in its sole discretion, or third (3rd) parties may provide, links to other world wide websites or resources. Because Locate Load has no control over such sites and resources, you acknowledge and agree that Locate Load is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. These websites have not necessarily been reviewed by Locate Load and are maintained by third (3rd) parties over which Locate Load exercises no control.
41.2 You further acknowledge and agree that Locate Load shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
41.3 Locate Load expressly disclaims any responsibility for the privacy policies, information collection practices, the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third (3rd) party websites.
41.4 Locate Load does not, directly or indirectly, imply any approval, association, sponsorship, endorsement, or affiliation with any third (3rd) party or any website or the products or services provided by any third (3rd) party.
41.5 USER's linking to any other third (3rd) party websites is at your own risk. Without our prior written consent, you agree that you will not link material on this web site to another website, or associate or frame material in this web site with another website or materials of any entity.
Except as explicitly stated otherwise, any notices shall be given by email to Locate Load or to the email address you provide to Locate Load during the registration process (in your case), or such other address as the party shall specify. Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by prepaid postage to the address provided to Locate Load during the registration process. In such case, notice shall be deemed given four (4) days after the date of mailing.
43 Separability of provisions
Both parties expressly agree that if any section, sentence, paragraph, clause or combination of the same of this Agreement is found to be in violation of any law, such section, sentence, paragraph, clause or combination of the same shall be inoperative and the other parts of this Agreement shall remain binding upon the parties.
Locate Load may assign this Agreement without your consent. Furthermore this Agreement is not assignable, in whole or in part, by USER without prior written approval of Locate Load.
This Agreement constitutes the entire agreement between you and Locate Load and governs your use of the Service, superseding any prior written or oral agreements between you and Locate Load. The Agreement shall be governed by the laws of the country in which Locate Load is represented and the parties submit to the exclusive jurisdiction of them. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall be enforced. Headings are for reference purpose only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. References to the singular shall include the plural and vice versa.