Materially, Inc. (“Materially,” “we,” “our” or “us”) welcomes you. We provide the Materially website at www.materially.com and its subdomains (“Site”), the Materially application (“App”) and/or tools or other services made available on the Site and App (collectively, “Services”). Your access and use of the Services (or any portion of the Services) are governed by the terms and conditions contained in this Terms of Service (this “TOS”). This TOS governs the relationship between Materially and you, the user of the Services.
Because this TOS is a legally binding contract, please read this TOS carefully. Please print a copy of this TOS for your records. It is important that you read carefully and understand the terms and conditions of this TOS. By accepting this TOS, and/or by accessing or using any part of the Services, whether or not you create an account with us, you agree to be bound by this TOS. If you do not agree to this TOS, you do not have the right to access or use any part of the Services.
You represent that: (a) if you are entering into this TOS on behalf of your employer, or any other entity or person, you are duly authorized by your employer, such other entity or such person to enter into this TOS which will be binding upon both you individually and such employer, other entity or person (and “you” as used in this TOS shall refer to both), (b) you are of the legal age to form a binding contract with us, and (c) you are not a person barred from subscribing, using or accessing the Services under the laws of the United States or other applicable jurisdiction.
2.1 General. Materially’s Services provide for real time communication and digitization of certain documents relating to transactions to purchase and deliver (“Transactions”) aggregates, salt and other bulk materials (collectively, “Materials”) among (i) suppliers (“Suppliers”); (ii) customers (“Buyers”), and (iii) trucking providers (“Truckers”) hired by Suppliers or Buyers to deliver the Materials. Suppliers, Buyers and Truckers are referred to collectively as “Users.” Your account allows for you to designate which type of User you are -- Supplier, Buyer or Trucker. If you wish to use the Services in your capacity as more than one type of User, then you may be required to establish a separate account for each type of User.
2.2 Technology Only. You understand that the Materially does not purchase, sell or deliver any Materials or provide delivery services but assists Suppliers, Buyers and Truckers to transact with each other through electronic documents for the purchase, sale and delivery of Materials. Suppliers are solely responsible for all issues related to the quality, quantity, accuracy and other features of the Materials sold to Buyers. All issues relating to the pick up of Materials by Truckers from Suppliers and the delivery of Materials by Truckers to Buyers, including timeliness of delivery, risk of loss or damage to Materials, errors and other matters relating to the pick up and delivery of Materials, are the responsibility of the Suppliers, Buyers and Truckers. The Services do not include payment processing, and Materially does not collect or process, directly or indirectly, any payment for any Transactions among Suppliers, Buyers and Truckers.
2.3 Electronic Signature. You acknowledge and agree that in using the Services, by clicking on an electronic button with words such as “Verify, “I Agree,” “I Accept,” “Submit” or similar language, such action shall have the same legal effect as a signature and will be binding upon you.
2.4 Calls and Messages. You agree to receive calls or SMS messages from Materially relating to Transactions and Your Account for which message and data rates may apply. You may opt out of receiving text messages by texting “STOP.”
2.5 Location Data; Device Data. Truckers, on behalf of themselves and their personnel, hereby authorizes Materially to track the location of Truckers and their personnel (including by tracking the location of Truckers’ and their personnel’s devices), to use such information to provide the Services, and to share such location information with third parties, including the applicable Supplier and Buyer. Truckers will obtain, prior to the use of the Services, all permissions and consents from their personnel necessary for Materially to contact such personnel, including through the App, SMS messages and phone call, or to otherwise receive and use location information about such personnel.
3. Your Content; License. As used in this TOS, “Content” means any content, information or other material of any kind that you or other Users post, upload or transmit through the Services, including contract terms, business terms, communications, forms, agreements, invoices, pricing, orders, videos, photos, images, works of authorship, trademarks, logos, service marks, personal information, financial information, product information, order information and other content, information and materials. You hereby grant to Materially, a non-exclusive, perpetual, worldwide, irrevocable, sublicenseable, royalty-free right and license to disclose, transmit, reproduce, transmit, distribute, perform, display, create derivative works of, modify and otherwise use your Content in connection with providing the Services and to improve the Services. The foregoing license includes the right to make any modifications to your Content, regardless of the effect of such modifications on the integrity of such Content, and to identify or not identify you as the author of such Content, whether or not your Content has been modified. You agree that Materially may freely use any document formats, fields, ideas, concepts, techniques, know-how and processes within your Content during after the term of this TOS. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of your Content that you have under any applicable law under any legal theory. You agree that Materially is not responsible for the accuracy, completeness or legality of any Content transmitted or otherwise made available through the Services, by you or other Users. Although Materially is not responsible or liable for any Content that is transmitted or otherwise made available through the Services by you or other Users and has no obligation to monitor any such Content, Materially reserves the right to remove or restrict any Content that Materially deems violates this TOS, is illegal, or is otherwise objectionable, and will make commercially reasonable efforts to notify you of such removal or restriction if such Content is yours.
4. Confidential Information. Materially understands that Transaction information uploaded, transmitted or otherwise provided by you or other Users may be considered the confidential by you and/or such other Users. Materially will take reasonable measures to protect the confidentiality of such information. Materially will use such information for the purposes for which it was provided and to otherwise provide the Services, and will disclose such information to other Users or third parties in furtherance of the purposes for which it was provided as reasonably determined by Materially. You agree that Materially is not liable or responsible for any use or further disclosure or dissemination of your Confidential Information by any third party, including other Users, who received or accessed such information through the Services.
7. Your Representations. Your Representations. You represent and warrant that: (a) you have the full power and authority to enter into this TOS; (b) you have all the necessary, right, title and interest (including all permissions, licenses and consents from third parties) necessary to provide your Content and to grant the licenses granted in this TOS; (c) your Content, and the use thereof in connection with the Services, does not and shall not infringe, misappropriate, derogate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other rights of any third party, and is not and shall not be defamatory or obscene; and (d) you will comply with all applicable law and regulations in your access and use of the Services, in connection with Transactions and with respect to your activities under this TOS (including all applicable consumer protection, data protection and privacy laws and, in the case of Truckers, all applicable laws relating to the transport of Materials).
8. License to Access and Use Services. Subject to your compliance with this TOS, and solely for so long as you are permitted by Materially to access and use the Services, Materially grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right to access and use the Services for your business use only. Materially and its licensors reserve and retain all rights related to the Services (including all intellectual property rights related thereto) not expressly granted in this TOS.
9. Responsibility for Your Account.
9.1 Accounts. You will be required to create an account in order to access the Services. With respect to you account, you agree to (a) provide true, accurate, current and complete information about yourself (and your users) every time you (and your users) provide information to us, and (b) maintain and promptly update information about yourself (and your users) to keep such information true, accurate, current and complete. You acknowledge that if any information provided by you (or your users) is untrue, inaccurate, not current or incomplete, we reserve the right to immediately terminate this TOS, and your access and use of the Services and your account.
9.2 Your Account. Your account is for your use only, and not for use by any other party. You will be responsible for maintaining the confidentiality of the credentials you use to log into your account (“Login Credentials”) when accessing and using the Services and agree not to transfer, share or disclose your Login Credentials, or otherwise transfer, share or resell your access to the Services, to any third party. You agree to immediately notify Materially of any suspected or known unauthorized use of your Login Credentials or your account, or any other breach of security related to your account or the Services. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. YOU ARE ENTIRELY RESPONSIBLE FOR ALL ACTIVITIES TAKING PLACE THROUGH YOUR ACCOUNT, whether or not you are the party who undertakes such activities, unless you report any misuse of your account to us.
10. Pricing; Payment.
10.1 Pricing. Any pricing displayed within the Services for (a) the sale of Materials by Suppliers to Buyers and (b) the delivery of Materials by Truckers are for reference only and are finally determined by the Buyers, Suppliers and Truckers, respectively.
10.2 Fees. You agree to pay Materially the fees for the Services, if any, in accordance with applicable pricing presented to you when you signed up for the Services. Where applicable, you will be billed using the billing method you selected. You represent and warrant that the credit card or other payment information you provide to us is correct and you will promptly notify Materially of any changes to such information. Fees paid by you are non-refundable. You will pay the fees for the Services in accordance with the payment terms which are presented to you for the Services at the time you initiate a Transaction or interact with other Users. If no such payment terms are presented, fees for the Services will be due on the date the invoice is issued to you.
10.3 Taxes. Our fees listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying, and agree to pay, Taxes associated with your use of the Services and any fees payable to Materially.
11. Changes to the Services. Materially reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify the Services. We will provide thirty (30) days’ notice to you of any changes to the Services which result in a material degradation in the features or the functionality of the Services. You agree that (a) Materially shall not be liable to you or to any third party for any modification of the Services, in whole or in part, and (b) your continued use of the Services after any changes to the Services have been implemented will be deemed your acceptance of such changes.
12. Code of Conduct. In accessing and using the Services, you agree to abide by the following rules, restrictions and limitations:
13. Links to Third Party Sites. Services may contain links to websites, apps and other electronic offerings controlled or offered by third parties (“Third Party Sites”). Materially does not endorse or recommend any products or services offered by or information contained in any Third Party Sites. Materially hereby disclaims all liability for all information, materials, products or services posted, offered or that may be accessed at any Third Party Site. Materially makes no representations or warranties regarding the quality of any product or service contained at any such Third Party Site.
14.1 Content. Subject to the licenses you granted in Section 3, as between (a) you and (b) Materially, you shall own and retain all right, title and interest (including all intellectual property rights) in and to your Content.
14.2 Services. Materially (and its licensors) shall own and retains all right, title and interest (including all intellectual property rights) in and to the Services (including each component thereof), including all content (other than your Content) and other materials appearing therein. Materially shall also own and hereby retains any and all metadata related to your Content generated by the Services, Site and Materially’s systems. The Services, and the underlying technology and software comprising the Services, are and shall remain the exclusive property of Materially and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. All trademarks and service marks appearing within the Services not owned by Materially are the property of their respective owners. The trade names, trademarks and service marks owned by Materially or its licensors, whether registered or unregistered, may not be used without our written consent or in any manner that is likely to cause confusion.
15. Disclaimers of Warranties; Limitation of Liability.
15.1 Disclaimers. THE SERVICES ARE PROVIDED TO YOU “AS IS” AND YOUR USE THEREOF IS AT YOUR SOLE RISK. MATERIALLY DOES NOT WARRANT THAT: (A) THE SERVICES (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (C) ANY ERRORS OR MALFUNCTIONS IN THE SERVICES WILL BE CORRECTED. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, INTERRUPTIONS, DELAYS AND FAILURES OF THE SERVICES. EXCEPT FOR ANY EXPRESS WARRANTIES MADE BY MATERIALLY IN THIS TOS, MATERIALLY: (I) DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT, AND TITLE WITH RESPECT TO THE SERVICES, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND (II) SHALL NOT BE LIABLE IN THE EVENT OF ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, ANY INTERRUPTION, SUSPENSION OR CESSATION OF ACCESS TO THE SERVICES, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED THROUGH THE SERVICES BY ANY THIRD PARTY, AND ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES.
15.2 Limitation of Liability. MATERIALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR COST OF SUBSTITUTE PROCUREMENT, LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICES OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, OR COST OF RECOVERY OR OTHER DAMAGES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, MATERIALLY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES, OR YOUR ABILITY TO ACCESS YOUR ACCOUNT, OR FROM ANY AND ALL CONTENT OR MATERIALS POSTED, DOWNLOADED, UPLOADED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. UNDER NO CIRCUMSTANCES SHALL MATERIALLY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OR OTHER NETWORK (INCLUDING WITHOUT LIMITATION PHONE NETWORK OR OTHER TELECOMMUNICATIONS NETWORK) FAILURES OR “BROWNOUTS”, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. NOTWITHSTANDING ANYTHING ELSE IN THIS TOS, MATERIALLY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS AND/OR THE SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO MATERIALLY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH MATERIALLY RECEIVES NOTICE OF A CLAIM FROM YOU. MULTIPLE CLAIMS WILL NOT INCREASE THE LIMITATIONS IN THIS SECTION.
15.3 Jurisdictional Limitations. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
16. Term and Termination; Suspension. This TOS is effective on the date you use or access any portion of the Services until it is terminated by you or Materially. You have the right to cancel Your Accounts and terminate this TOS at any time for any reason by notifying us in writing, including through email, at least thirty (30) days before the effective date of termination. Materially has the right to cancel Your Accounts (in whole or part) and terminate this TOS at any time for any reason by notifying you, including at via email at the email address we have on file for your administrative account, at least thirty (30) days before the effective date of termination. Upon the termination of this TOS or Your Accounts, you will no longer have access to Your Accounts. Materially may in its sole discretion continue to provide the Services (and provide access to Your Accounts) after the effective date of termination for Transactions which had been initiated before the effective date of termination. Additionally, Materially may immediately suspend or terminate your access to the Services and Your Accounts in the event it determines or believes that you have violated or will violate this TOS, or if it otherwise believes in its sole discretion that your access to or use of the Services may expose Materially or others to any harm or liability. You agree that Materially shall not be liable to you or any third party for any termination of this TOS, whether by you or Materially, and any termination or cancellation Your Accounts or the Services. Upon any termination of this TOS, the Sections intended to survive, including Sections 1, 3, 4, 6, 7, 10, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, and 25 and 26, shall survive.
17. Governing Law; Dispute Resolution.
17.1 Governing Law. This TOS and all matters arising out of or relating to this TOS and/or the Services will be governed by the internal laws of the State of New Jersey, United States, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New Jersey to the rights and duties of Materially and you. This TOS will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
17.2 Good Faith Efforts to Resolve Dispute; Venue. In the event that any dispute arises between you and Materially relating in any way to the Services, which may include the interpretation, construction, coverage, scope, performance, non-performance, breach, termination, validity or enforceability of this TOS (“Dispute”), you and Materially will make bona fide efforts to settle such Dispute amicably by good faith consultation and discussions. If you and Materially are unable to resolve such Dispute after good faith consultation and discussions for thirty (30) days, such Dispute shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey, and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. Notwithstanding the foregoing, you or Materially may seek injunctive relief in any court of competent jurisdiction.
17.3 Time Limitations to Bring Claims Against Materially. You must contact Materially in writing within one (1) year of the date of the occurrence of the event or facts giving rise to a claim against Materially, or you hereby waive the right to pursue a claim against Materially based upon such event or facts.
18. Indemnity. You agree to defend, indemnify and hold harmless Materially its employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Services; or (b) any violation of this TOS by you.
19. Compliance with Applicable Law. In using the Services, you agree to comply with all applicable federal, state, local and international laws and regulations, including export and import laws, regulations, orders or other restrictions administered by the United States Commerce Department's Bureau of Export Administration, the United States Department of Treasury's Office of Foreign Assets Control or any other applicable government agency. You understand that use of the Services and transfer, posting and uploading of software, technology, and other technical data via the Services may be subject to the export and import laws of the United States and other countries.
20. Claims of Copyright Infringement.
20.1 DMCA. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under United States copyright law. If you believe in good faith that materials transmitted through the Services infringe your copyright, you (or your agent) may send Materially a notice requesting that Materially remove the material or block access to it. Please provide the following information: (a) a electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (b) a description of the copyrighted work that you claim has been infringed upon and sufficient information for Materially to locate such copyrighted work; (c) information reasonably sufficient to permit us to locate the copyrighted work; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
20.2 Counternotices. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Materially a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
20.3 Notices and Counter-Notices. Notices and counter-notices should be sent to:
20.4 Termination of Account. Materially shall have the right to suspend, terminate or disconnect all Services for any account engaged in suspected repeated copyright infringement. Materially shall have the right to transmit the notification to the user of the Services transmitting or receiving the allegedly infringing material, and to transmit any counter-notification to the complaining party.
22. Severability. If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this TOS and will not affect the validity and enforceability of any remaining provision.
23. Notices. You authorize Materially to send you notices and information regarding the Services, and that all notices permitted or required under this TOS may be sent to you via email to the most current email address we have in our systems for you. The Services may also provide notices of changes to this TOS or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this TOS and of any notice given in electronic form shall be admissible in arbitration, judicial or administrative proceedings based upon or relating to this TOS to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may provide notice to Materially at our contact information in Section 27.
24. Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under this TOS without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this TOS, or relating to the Services, without restriction. For purposes of clarity, you may not transfer for your account to any third party.
25. No Third Party Beneficiaries. Nothing in this TOS will be construed to confer upon any third party other than the parties hereto any third party beneficiary right of action whatsoever.
26. Captions and Headings. Any caption, heading or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
27. Contact Us. If you have any questions regarding the meaning of application of this TOS, please direct such questions to firstname.lastname@example.org. You may provide us notices under this TOS at:
Please note that e-mail communications will not necessarily be secure; accordingly you should not include sensitive information in your e-mail correspondence with us.
Please note that e-mail communications will not necessarily be secure; accordingly you should not include sensitive information in your e-mail correspondence with us.