1. Acceptance of Terms.
1.1 BusBot Incorporated (“Denim” or “we”) provides its Service (as defined below) to you through its web site located at http://denim.com. (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates, including, without limitation, each prospective or actual borrower, carrier, broker, or shipper that accesses or uses the Site or Services. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
1.2 Denim may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the Site. You can review the most current version of this TOS at any time by logging into your account. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services and send a cancellation email to underwriting @denim.com.
1.3 As part of the registration process, you will identify an administrative user name and password for your account (“Account”). If the option is made available to you, you may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted by Denim.
1.4 If you are under eighteen (18) years old, you may not use the Service.
2. Description of Service.
2.1 The “Service” includes (a) the Site, (b) Denim’s financial platform providing invoice factoring services for freight brokers and related services and technologies, and (c) all software, data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). For the avoidance of doubt, these TOS only govern the Services as described in this Section 2.1. To the extent that you enter into a separate agreement with Denim covering other services, that agreement will govern your use and Denim’s provision of such services. Denim’s factoring services are governed by the Denim Factoring Agreement. Any new features added to or augmenting the Service are also subject to this TOS.
2.2 The Services may also include ancillary products or services that you order, including Denim Pro and Denim Wallet. To the extent that you use or order Denim Wallet, the Denim Wallet Terms are hereby incorporated into these TOS.
3. General Conditions/ Access and Use of the Service.
3.1 Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Denim. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Denim provides you or publishes in connection with the Service, and you shall promptly notify Denim if you learn of a security breach related to the Service.
3.2 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You agree to cooperate with and provide reasonable assistance to Denim in promoting and advertising the Services.
3.3 In the event that we or our service providers incur losses because of chargebacks, funds are reversed by your bank, or funds are disputed or otherwise fail to clear your account, at our sole and exclusive option, you will immediately reimburse us or our service providers for any loss incurred or we reserve the right to apply money or payments to amounts you owe to us or used to offset loss incurred by us. In addition, any transaction that you initiate may be suspended or terminated for any of the foregoing reasons.
3.4 You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Denim reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, you hereby do and shall grant Denim a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Denim has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Denim may remove or disable any Content at any time for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3.5 You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Denim’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Denim will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.6 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Denim’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.7 The failure of Denim to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Denim, even though it is electronic and is not physically signed by you and Denim, and it governs your use of the Service.
3.8 Denim reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Denim’s website and in other communication with existing or potential Denim customers. To decline Denim this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
3.9 Subject to the terms hereof, Denim may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
5. Payment. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan made available to you through the Service and provide Denim information regarding your credit card or other payment instrument. You represent and warrant to Denim that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Denim the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize Denim to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Denim know within sixty (60) days after the date that Denim invoices you. We reserve the right to change Denim’s prices. If Denim does change prices, Denim will provide notice of the change on the Site or in email to you, at Denim’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Denim may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Denim thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Denim’s net income.
6. Representations and Warranties. You represent and warrant to Denim that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Denim to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Denim’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
7. Termination. Subject to earlier termination as provided below, Denim may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Denim may also terminate this TOS upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. Denim reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by Denim upon any termination of your account in its sole discretion. If Denim terminates your account without cause and you have signed up for a fee-bearing service, Denim will refund the pro-rated, unearned portion of any amount that you have prepaid to Denim for such Service. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.
8. Financial Services Disclaimer. You acknowledge and agree that Denim is not a money transmitter and works with third party licensed money transmitter or financial institution to conduct regulated transactions. Denim does not provide investment, financial, tax, or legal advice. The information and applications provided in connection with the Services does not constitute investment advice, financial advice or any other sort of advice, and should not be treated by any user as such. You understand and agree that in the course of evaluating any application to use our Services, you will be required to provide detailed information about yourself and your business or your client, as applicable, including personal and business identification information, and that a credit report(s) will be obtained. You understand that obtaining a credit report could adversely impact your credit rating.
9. DISCLAIMER OF WARRANTIES. THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY Denim OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND OUR REASONABLE CONTROL. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Denim EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT Denim DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM Denim OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
10. LIMITATION OF LIABILITY.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL Denim BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
10.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, Denim’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. Indemnification. You shall defend, indemnify, and hold harmless Denim from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Denim shall provide notice to you of any such claim, suit or demand. Denim reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Denim’s defense of such matter.
12. U.S. Government Matters. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Denim on your Equipment (if applicable) 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 TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
13. Assignment. You may not assign this TOS without the prior written consent of Denim, but Denim may assign or transfer this TOS, in whole or in part, without restriction.
14. Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Denim in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
15. Governing Law. This TOS shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by Denim in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to your access to or use of the Service.
Denim Wallet Terms
These Denim Wallet Terms (“Denim Wallet Terms”) are incorporated into and made a part of the Denim Terms of Service (“TOS”). Terms not defined herein have the meaning given to them in the TOS.
The “Denim Wallet” is a service that enables you to make payments to carrier payees (“Carriers”) through the Service. By accepting using the Denim Wallet, you acknowledge that you have read, understood, and agree to be bound by these Denim Wallet Terms and the TOS.
1 Denim Wallet Generally.
You may initiate payments from your Denim account to your Carriers according to the Payment Instructions you provide us. “Payment Instructions” are the dates, amounts, Vendor Information, and other information that you give us in order to initiate the payment from your Denim account to the Vendor. “Vendor Information” is any identifying information related to the Vendor, including to the Vendor's name and address, email address, bank routing and account numbers that you provide us in order to identify the Vendor for the purpose of transmitting payment to them. You are responsible for verifying the accuracy of all Payment Instructions provided to us. You authorize us to follow any Payment Instructions or approvals provided by sub-users, whether or not the Payment Instructions are authorized by you.
2 Fund Ownership.
Payments to Carriers are originated and managed by our payment service provider and their financial institution. In accordance with the Payment Instructions, our payment service provider’s financial institution debits payments to Carriers (other than fees) from your financial account and pays those amounts directly to the Carrier. For the avoidance of doubt, these payments do not pass into Denim’s legal ownership or control at any time from payment initiation to successful delivery, including any subsequent refunds.
By initiating a payment, you authorize our payment service provider or its financial institution partner to debit your selected payment method, receive, and transmit your payment through master bank accounts at our payment service provider that are held in our payment service provider’s name owned and controlled by our payment service provider or its financial institution The account title or ledger also show that these accounts are held by the financial institution for the benefit of customers and end users of our payment service provider. You grant Denim the right to instruct our payment service provider on the use of funds in the accounts, including to receive funds from you and to then send funds to your Carrier based on your instructions. Your funds may be pooled with the funds of other users while they are temporarily held in this account.
3 Initiating Payments.
To initiate a payment, you must designate a Carrier and a schedule for processing and delivering the payment.
3.1 Setting Up Your Carriers.
To use the Denim Wallet, you will be required to provide information for your Carriers. For each Carrier, you agree to provide correct and current information as requested by Denim. By providing, entering, connecting, or uploading any Carrier Information to the Denim Wallet, you represent and warrant that you have obtained all necessary authorizations or consents from the Carrier to share such information. You represent and warrant that the Carrier agrees, or you have the authority to agree on behalf of the Carrier, to be subject to and comply with these Bill Pay Service Terms and all applicable laws, rules and regulations. You are solely responsible and Denim is not responsible for verifying the accuracy of any Carrier Information provided in connection with your Denim account or use of the Denim Wallet. Denim will have no liability for losses or damages resulting from the accuracy or inaccuracy of such Carrier Information, including bank account information, or your or your Carrier’s actions or inactions. You acknowledge and agree that you are solely responsible for selecting and paying the correct Carrier. Denim will have no liability or responsibility if you select or pay an incorrect Carrier.
4 Schedule and Delivery of Payments.
You authorize our payment service provider or its financial institution partner to initiate ACH debit entries from your financial institution account in accordance with your Payment Instructions, and as necessary, to initiate adjustments or reversals as provided in these Denim Wallet Terms, or applicable laws, rules, or regulations. You acknowledge that we are entitled to rely on your Payment Instructions. We, our payment service provider, or their financial institution will not be liable or responsible for verifying that any Payment Instruction, including the amount and any Carrier information, is correct.
Neither we nor our payment service providers will have any liability relating to or obligation to be involved, in any dispute between you and your Carrier regarding any payment made through the Denim Wallet, including disputes related to the timeliness of the payment, the account to which the payment was sent, the products or services provided in connection with the payment, or any overpayment or underpayment.
4.1 Selecting a Timetable for Delivery.
Payment transactions made through the Denim Wallet require sufficient time for our payment service provider’s financial institution to debit your financial account and for your Carrier to receive payment. When making a payment through the Denim Wallet, you must select an available date on which Denim will process the ACH debit from your financial account to fund the payment (“Process Date”). If your Process Date does not fall on a business day, we may initiate the payment on the next business day. You agree that you are solely responsible for scheduling payments and selecting an appropriate Process Date for each payment transaction. You understand that the selection of a future Process Date may not be available for all products and services.
When provided by Denim, estimated payment dates are for convenience only, and Denim does not guarantee that a payment to a Carrier will be made within any specific time frame of the Process Date, and Denim disclaims any responsibility or liability if a payment scheduled through the Bill Pay Denim Wallet is not made to a Carrier on or before any specific date. It is your sole responsibility to ensure that payment to a Carrier is made as required by agreement, contract or law. Except as otherwise agreed or required by law, you will be solely responsible and Denim will not be responsible for all penalties, interest charges, and other late payment fees associated with payments that are delivered after their due date.
4.2 Modifying, Cancelling and Voiding Payments.
Payments that are scheduled but have not yet begun to be processed may be canceled and, if a change is needed, reissued, through your financial account, provided that you provide us with sufficient advance notice and we have a reasonable opportunity to cancel your payment before it is initiated. We may require you to request cancelation or changes to your scheduled payment at least 3 business days before the scheduled Process Date. Once our payment service provider or its financial institution has begun to process a payment, the payment cannot be canceled, and you must request to void the payment.
To stop a payment after Denim has begun to process it, you must request to void the payment (“Void Payment Request”) through the Denim Wallet. If you submit a Void Payment Request, Denim will use commercially reasonable efforts to stop the payment, but you understand and agree that Denim may not be able to stop the payment. Denim’s ability to stop a payment depends on a number of factors, including to the payment method and whether the payment has cleared the Carrier’s account. you agree that Denim will not have any liability for failing to stop a payment that has begun to process. A Void Payment Request may be subject to a fee. You agree to indemnify, defend, and hold us harmless from any claims, losses and liabilities in connection with of our attempt to stop a payment after it is initiated.
Denim reserves the right to expire, void or cancel any payment if the payment is not deposited or otherwise received and processed by a Carrier within a reasonable amount of time, as determined by Denim in our sole discretion. If we expire, void or cancel any payment, you authorize and our payment service provider’s financial institution will credit the amount of the payment to your financial account, less any Denim Wallet fees or other amounts owed by you to Denim.
4.3 Sufficient Funds.
If your financial account is not in good standing or does not have sufficient available funds on the Process Date, our payment service provider’s financial institution may elect not to initiate one or more of the transfers until they are rescheduled, your financial account is in good standing, and enough funds are available to cover the total payments for each Process Date. If our payment service provider’s financial institution does elect to initiate the transfer, which may involve one or more attempts on subsequent business days, it may cause an overdraft in your financial account, in which case you shall be fully responsible for the overdraft and any overdraft fees as well as all late fees, interest charges or other action taken by the Carrier or your financial institution. When using the Denim Wallet, you understand and agree that it may take more than 60 days for us to receive notice of the return or reversal of an ACH debit and/or to exercise any rights granted or reserved under these Denim Wallet Terms.
5 Right to Hold and Reject Payment.
We or our payment service providers reserve the right to elect to not initiate a payment for any reason in our sole discretion. For example, if a payment is missing required information or if we have found other errors that prevent us from processing a payment, we or our payment service provider may, without any liability to you, reject the payment less the cost of applicable fees. We and our payment service provider are not required to confirm or authenticate a payment you make in connection with the Denim Wallet. It is your responsibility to keep all information and credentials, including access thereto, in connection with your Denim Wallet secure, and we may treat any transaction made using your access credentials as authorized by you. We and our payment service provider have no duty to you to monitor or verify any payment you make in connection with the Denim Wallet.
In addition, in its sole discretion, Denim may place a hold on a payment you initiate for as long as required to conduct an appropriate inquiry regarding you, the Carrier, a bill, payment history and other relevant circumstances and factors. Depending on the results of this review, the Denim may process, reverse or cancel a payment you initiate, or hold the related funds pending instructions from a government agency. At any time, a payment you initiate may be reversed or canceled by Denim in its sole discretion and without prior notice to you.
6 Returned Items.
We will try to notify you of a returned payment however we are not required to do so. You can request to cancel the payment or re-initiate it. If you do not provide direction, we will cancel the payment. We are not liable for any returned or reissued payment.
You represent and warrant:
8 An Independent Third-Party.
Denim is an independent, third-party service that is not affiliated with your Carriers. You acknowledge and agree that your use of the Denim Wallet does not in any way constitute a tri-party agreement between you, Denim, and your Carriers.
Accordingly, neither Denim nor our payment service provider has responsibility nor will have liability for any consequences resulting from your interactions or contracts with Carriers, including payment terms, the proper and timely delivery of goods or services, and any associated disputes which may arise. You further acknowledge that your use of the Denim Wallet does not alter or affect any Carrier payment terms including but not limited to deadlines, payment plans, late fees, and refunds. Neither Denim nor our payment service provider endorse, recommend, or bear any responsibility or liability for any products, services or statements presented by Carriers.
Carrier statements and opinions are not representative of Denim or its business partners.