Terms of Service
Last updated: February 22, 2024
These Customer Terms and Conditions (the “Agreement”) constitute a legally binding contract between the company accepting this Agreement as further described below (the “Customer” or “you”) and Highsman, Inc. (“Highsman” or “we”).
Highsman offers access to its brand and others that sells products via a website located at www.gethighsman.com and any associated mobile application (the “Highsman Platforms”). The Highsman Platform allows businesses to purchase its products from our website for sale in there stores. Highsman also provides fulfillment services for other online platforms offering Drop Shipping of its products, whereby Highsman arranges for its product to be shipped directly to the distributors business customers. The “Highsman Products” are all products sold on www.liveresin.shop (the “Highsman Platform”) and shipped to any business customer.
This Agreement sets forth the terms and conditions governing any of the Highsman products provided by Highsman to Customer. By accessing or using the Highsman Platform or purchasing Highsman Products, you are (i) accepting this Agreement on behalf of yourself and the Customer company, entity, or organization you represent and (ii) representing and warranting that you have the right, authority, and capacity to enter into this Agreement on behalf of yourself and the Customer company, entity or organization you represent.
By agreeing for Highsman to provide Highsman Products and/or accessing the Highsman Platform, Customer expressly accepts this Agreement. Customer may not access or use the Highsman Platform or Highsman Products if Customer does not agree with all provisions in this Agreement. This Agreement is subject to occasional revision by Highsman. In the event of any material changes made to the Agreement, Highsman will notify you by electronic mail, or other means of communication. Any changes to this agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. These changes will be effective immediately for new users of the Highsman Products. Continued purchase of Highsman Products following notification of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. If Highsman and Customer have fully executed a separate written valid contract that governs all or part of the Highsman Products, this Agreement shall still govern to the extent it does not conflict with the terms of such other contract.
Description of Services. Highsman will provide Customer access to the Highsman Platform via an account, which may be accessed by one or more Customer users authorized to use the account. Customer, through a Customer user or Highsman account representative, may submit a request for Highsman to arrange for the purchase of goods. Customer may cancel a purchase at any time prior to shipment by Highsman or return a product for a refund as long as product is in Like New Condition within 60 days of the purchase of product. Highsman may reject or decline a purchase request for any reason in its sole discretion. Customer represents and warrants that all Product Purchase information it submits to the Highsman Platform will be truthful, complete, and accurate. Customer agrees that Highsman has sole discretion to select the Carriers who perform transportation services, and the Carrier shall select the means, route, and procedure to be followed in the handling, transportation, clearance, consolidation, deconsolidation, and delivery of the shipment. Customer agrees that Highsman may arrange with Carriers or other third-parties for the consolidation and/or deconsolidation of Customer’s cargo on less-than-truckload, shared truckload, or full truckload shipments, which may be shipped with cargo of other Highsman customers.
Rates and Charges. In consideration for Highsman Products, Customer shall pay Highsman the applicable charges described in the Checkout Cart of the www.liveresin.shop webpage and subsequent order conformation email sent to the customers email address. For each Purchase Order Accepted by Highsman, Customer shall pay the price quoted by Highsman and accepted by Customer via the Highsman Platform, or any other amount agreed to by the parties and as reflected in the Highsman Platform. Customer’s tendering of an website order or notification via email of an order being placed with Highsman constitutes Customer’s acceptance of the quoted price. In addition, Customer shall also pay any applicable accessorial or similar charge occurred for the shipment which may include Credit Card Processing Fees, Shipping Charges, Tariffs or State, City or Federal Taxes.
Customer shall pay all charges without offset within Five (5) days of the invoice date. Customer shall also be liable for any expenses, including attorney’s fees, Highsman occurs in collecting its charges. Any amount that is not paid when due will accrue interest at twelve percent (18%) per annum or the maximum rate permitted by applicable law, whichever is more but in no case higher than 60% per annum, from the due date until paid. Timely payment is a condition precedent to the processing of the order and shipping of the products. To dispute an invoice amount, Customer must provide written notice to Highsman by sending an email to [email protected] within five (5) business days of the invoice date. Such notice must include the invoice number, amount being disputed, and the basis for such dispute. If Customer fails to notify Highsman of any invoice dispute within such time period, Customer waives its right to dispute the invoice and must pay the full amount. In any event, Customer must still pay the undisputed portion of each invoice in accordance with the terms set forth herein. Highsman shall have a general and continuing lien on any and all property of Customer coming into Highsman actual or constructive possession, custody or control, which lien shall survive delivery, for all charges (including but not limited to storage charges incurred in order to preserve the property until sale), expenses or advances owed to Highsman with regard to the Products against which the lien is asserted or on any prior shipment(s) for Customer. To protect its lien rights, Highsman reserves the right to require advance payment of all due charges prior to shipment or release of Customer’s goods.
Customer consents to Highsman performing credit and background searches on Customer’s business as Highsman deems necessary. Payment terms and credit limits are subject to the sole and absolute discretion of Highsman and may be increased, decreased, or wholly revoked at any time. Customer is responsible for payment of all applicable charges, including any adjustments, when Customer pays via credit card or electronic funds. Customer authorizes Highsman to charge the Customer’s credit card or bank account for any charges for payments required herein and automatically charge the customer’s card or bank account when an invoice becomes due.
Term and Termination. The term of this Agreement shall commence when Customer first accesses or uses the Highsman Platform or purchase Highsman Products and shall continue for so long as such access or use by Customer continues. Highsman may at any time terminate this Agreement in its sole discretion with or without cause. Upon termination of this Agreement, your account and right to access and use the Highsman Services will terminate immediately but the terms of this agreement will endure for any previously purchased products.
Carriers and Intermediaries. Highsman will evaluate and select Carriers to provide the transportation services in accordance with reasonable industry practices. From time to time, Highsman may also tender loads to other intermediaries to arrange for transportation of Customer’s shipment. In such case, the other intermediary will be responsible for the selection of the transporting motor carrier. Each Carrier shall be solely responsible for (i) controlling the method, manner, and means of accomplishing Carrier’s services; (ii) the acts and omissions of each of its employees, agents, contractors, independent contractors, subcontractors and other service providers; (iii) complying with all laws and regulations applicable to the motor carrier; and (iv) any cargo loss or damage in accordance with applicable United States federal law and/or the contract between Highsman and Carrier. Customer acknowledges and agrees that shipments transported with less-than-truckload carriers or UPS, Fedex and USPS are subject to the terms and conditions of such carriers, including but not limited to each carrier’s published tariff(s) and/or rules circular(s).
HIGHSMAN IS NOT A MOTOR CARRIER OR FREIGHT FORWARDER. NO ORAL REMARKS, WRITINGS, SHIPPING PAPERS, OR OTHER DOCUMENTS SHALL BE CONSTRUED TO IMPLY THAT Highsman IS A MOTOR CARRIER OR FREIGHT FORWARDER. Highsman HAS NO LIABILITY FOR ANY MOTOR CARRIER’S OR MOTOR CARRIER’S DRIVERS’ TRANSPORTATION SERVICES PROVIDED TO ANY CUSTOMER OR ANY OTHER PARTY.
Highsman Insurance. Highsman will procure and maintain the following types and amounts of insurance: (a) Commercial General Liability Insurance with a combined single limit of $1,000,000 per occurrence; (b) Worker’s Compensation Insurance in accordance with statutory requirements; and (c) Employer’s Liability Insurance with limits no less than $1,000,000 each accident, disease, and employee.
Any goods delivered to the customers premises that the customer does not receive are the sole responsibility of the customer and payment from the goods will be due in full as invoiced.
Claims. Customer agrees that Highsman shall have no liability for cargo loss, damage, destruction, or delay. Highsman may facilitate processing of cargo claims with Carriers on Customer’s behalf; provided, however, that Highsman shall have no liability for such cargo claim notwithstanding its assistance. Carriers will be liable for loss or damage to cargo pursuant to 49 USC § 14706 (the “Carmack Amendment”), subject to the following limitations: (i) for a truckload shipment, $100,000 per trailer or conveyance; (ii) for a less-than-truckload or “LTL” shipment, the limit per pound for the applicable freight class set forth in the Carrier’s tariff, but in any case not to exceed $25.00 per pound of lost or damaged cargo up to $100,000 per trailer or conveyance; and (iii) for a shared truckload shipment, $100,000 in the aggregate per trailer or conveyance, provided that liability to each shipper will be prorated based on the linear feet of the trailer or container utilized by the shipper. Customer must file cargo claims directly with the Carrier within nine (9) months following the date of delivery (or the shipment date if completely lost) and any civil action within two (2) years from the date of the Carrier’s disallowance of all or a portion of the respective claim. This Section will survive any termination of this Agreement.
Time Limitations. Customer acknowledges and agrees that Highsman will bear no liability for delay in delivery of products.
DAMAGES EXCLUSION. IN NO EVENT WILL Highsman LLC BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, NON-ECONOMIC, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT OR INCOME OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE). FURTHER, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Highsman BE LIABLE FOR ANY CLAIMS OR DEMANDS AGAINST CUSTOMER BY A THIRD PARTY ARISING OUT OF OR CONNECTED WITH THE HIGHSMAN PRODUCTS, REGARDLESS OF THE THEORY OF LIABILITY GIVING RISE TO SUCH DAMAGES.
Indemnity Obligations. Customer shall indemnify, defend, and hold Frozen Freight, Carriers, and their officers, employees, representatives, and agents (collectively, the “Indemnified Parties”), harmless from and against any and all liability, claims, damages, losses, costs, fines, penalties, expenses (Including attorney’s fees), judgments, or demands of any kind whatsoever asserted by third parties, including but not limited to personal injury, property damage, cargo damage, and pollution, suffered or claimed to have been suffered by any person or entity, arising out of (i) the negligence or intentional misconduct of Customer or its officers, employees, representatives, or agents (each a “Customer Party” and, collectively, the “Customer Parties“); (ii) a Customer Party’s violation of applicable laws or regulations; (iii) A Customer Party’s breach of this Agreement; or (iv) a Customer Party’s failure to provide complete and accurate instructions regarding safe handling of Products (including food and hazardous material), or Highsman reliance on Customer’s instructions for safe handling of Products (including food and hazardous material). This Section shall survive any termination of this Agreement.
Highsman Platform.
(a) Ownership and License. Highsman owns and retains ownership in all Highsman intellectual property, including the Highsman Platform and all intellectual property therein. Subject to Customer’s compliance with this Agreement, Highsman grants Customer a limited, non-exclusive, non-assignable, non-sublicensable, revocable, non-transferable license to access and use the Highsman Platform, intellectual property and marketing materials. Any rights not expressly granted herein are reserved by Highsman. Highsman does not convey or grant the Customer any rights in or related to the Highsman Platform except for the foregoing limited license.
(b) Account. Highsman will provide Customer access to the Highsman Platform via an account, which may be accessed by one or more Customer users authorized to use the account. Customer, through a Customer user or Highsman account representative, may submit shipment requests and accept quotes to transport a Customer shipment. Customer may delete its account for any reason at any time by contacting Highsman or following the instructions on the Highsman Platform. Customer shall maintain the confidentiality of its login credentials and must immediately notify Highsman of any suspected or actual unauthorized use of Customer’s account or other data or security breach. Customer is fully responsible for all activities that occur under its account, and Highsman is not liable for any loss, damage, or third party claims arising from Customer’s failure to comply with the requirements herein.
(c) Phone Calls and Text Messages. Highsman may contact Customer via phone call and/or text messages at any phone number provided by Customer to Highsman Freight. Customer consents to receive such phone calls and text messages, whether sent through an automatic telephone dialing system or other manner, including for marketing or promotional purposes. Customer may opt out of such text messages by contacting Highsman at [email protected], following the “opt-out” instructions in the text message. Message and data rates may apply.
(d) Privacy Policy. Customer is referred to Frozen Freight’s Privacy Policy located at the following website for information about how Highsman collects, uses and discloses information of Customer and its users of the Highsman Platform: www.Frozenfreight.com/privacy-policy/ (the “Privacy Policy”). The Privacy Policy is incorporated herein by reference and forms a part of this Agreement.
THE HIGHSMAN PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” HIGHSMAN HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, THAT ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT, LLCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Highsman MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE HIGHSMAN PLATFORM WILL BE UNINTERRUPTED; COMPLETE, SECURE; ERROR-FREE; ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR SAFE.
Confidentiality. Each party shall protect and keep in the strictest confidence any confidential or proprietary information of the other party using the same degree of care, but not less than a reasonable degree of care, that the receiving party uses to protect its own confidential information of like nature, to prevent the unauthorized use, disclosure, dissemination, or publication of such confidential information. The receiving party shall use the confidential information of the disclosing party only for the express purposes set forth in this Agreement. The provisions of this Section shall survive the termination of this Agreement.
Force Majeure. Neither party shall be considered to be in default or breach of this Agreement, and shall be excused from performance or delays in performance, if and to the extent such default, breach or non-performance arises out of any act or threatened act of God, strike or labor disturbance, pandemic or public health emergency, act of the public enemy, war, terrorism, invasion, insurrection, riot, protest, civil unrest, fire, storm, flood, ice, earthquake, natural disaster, explosion, epidemic, disease, closure of public roads, cyber attack, order or act by a governmental authority, any other cause or causes beyond such party’s reasonable control. The foregoing shall not apply to Customer’s failure to make payments to Highsman in accordance with the terms of this Agreement.
Miscellaneous. This Agreement embodies the entire understanding between the parties with respect to the subject matters addressed herein and therein, and there are no agreements, understandings, conditions, warranties, or representations, oral or written, expressed or implied, with reference to the subject matter hereof that are not merged herein. The parties hereby represent that they have full power and authority to enter into and perform this Agreement and the parties know of no contracts, agreements, promises, or undertakings that would prevent the full execution and performance of this Agreement. If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable and enforceable provision to replace the unenforceable provision. The rights and obligations hereunder are personal to each party to this Agreement, and this Agreement shall not be assignable or otherwise transferable by either party, in whole or in part, without the written consent of the other party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed.
Attorney’s Fees, Venue, Governing Law. This Agreement shall be construed in accordance with and is governed by the laws of the State of Delaware. In the event of any dispute arising out of this Agreement, Including the interpretation, enforceability, performance, breach, termination or validity thereof, a party’s sole recourse shall be exclusively through binding and confidential arbitration under the rules and using the Delaware Rapid Arbitration ACT. Before submitting an arbitration demand, the party bringing the claim shall first attempt to informally negotiate in good faith a resolution with the other party for a period of not less than thirty (30) days.
Arbitration proceedings shall be conducted under the rules of the Delaware Rapid Arbitration Act. Notwithstanding the exclusive venue provision pursuant to this agreement, in order to ensure prompt resolution of disputes regarding entitlement of persons to hold office, either Pell or Accelmed may submit any dispute arising under Section 3.2 or Section 3.4 for arbitration under the Delaware Rapid Arbitration Act, which arbitration shall be binding and not subject to appeal. Without limiting the foregoing, upon such arbitration election by either Pell or Accelmed, any dispute arising that is subject to a then pending court action, and which under Delaware law may then be submitted for arbitration under the Delaware Rapid Arbitration Act, shall be instead resolved solely by such arbitration, which arbitration shall be binding and not subject to appeal, and, such dispute pending in any other court shall be immediately dismissed without prejudice. In any such arbitration, the Company shall be joined as a party. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief or judgment, or in the event further legal action is taken to enforce the award of the arbitrator.
The parties may also proceed in small claims court in Broward County, Florida to resolve any dispute where reasonably expected damages are less than $10,000.
At any time, either party may apply to a court of competent jurisdiction in Broward County, FL for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses Incurred by the prevailing party Including, but not limited to, reasonable attorney fees.
The parties agree that this Section is reasonable due to the commercial circumstances of the proposed relationship and therefore waive any defense or objection to such exclusive jurisdiction based on forum non-convenient or similar grounds. This Section will survive any termination of this Agreement.