In exchange for access to this site and Ran Transportation Solutions, LLC’s ( “Company”) proprietary software program, you hereby agree to the terms of this End User Software License Agreement (“Agreement”), between you (an individual, company or other entity) and Company, effective as of the date of your registration for use of the Site. This Agreement governs your use of and access to Company’s LYNKS™ (“LYNKS”) proprietary software program, including associated products and services (the “Services”), and other related technology and web-based tools and technology (collectively, the “Software”) available at www.lynks2go.com (the “Site”). If you are accepting this Agreement on behalf of another person or legal entity, you represent and warrant that you have full authority to bind that person or entity to this Agreement and ensure that Users (as defined below) comply with this Agreement. You further agree to be responsible for all such Users’ compliance with or breach of this Agreement.
Please scroll down and real all of the following terms and conditions of this Agreement carefully before clicking “AGREE” or similar button or installing or using the Software. If you do not agree to this Agreement, do not download, install use or access the Software. By clicking an “AGREE” or similar button or by installing and/or using the Software, you agree to abide by all the terms and conditions stated or referenced herein. If you do not agree to abide by these terms and conditions, do not click an “AGREE” or similar button and do not use the Software. You must accept and abide by these terms and conditions as presented to you – any changes, additions or deletions by you to these terms and conditions will not be accepted by Company and will not be part of this Agreement.
I. GRANT OF LICENSE; LIMITS OF USE
1.1 Grant of License. You are granted a limited, non-transferable, non-sublicensable, non-exclusive right and license, to use the Software in accordance with the terms of this Agreement (the “License”). All rights in the Software other than those specifically granted under this Agreement are expressly reserved by Company.
1.2 Users and Administrators. “User” means any user of the Software, each of whom shall be issued or assigned a unique identification number (a “User ID”), and “Administrator” means, in the event you are an entity allowing access to the Software by more than one individual User, an employee who is expressly authorized by you to exercise administrative privileges on your behalf of with respect to the Software. If applicable, you may designate one or more of your members, employees or independent contractors who will act as Administrators with respect to your LYNKS account under this Agreement. The LYNKS system will provide each Administrator with certain administrative privileges with respect to your account (which other Users will not have), including the ability to access and control the rules and policies associated with the UserID for each User. The Administrator shall be solely responsible for authorizing, issuing and deauthorizing Users, administering security profiles of Users, and inputting data regarding the Users. You agree that no User login credentials will be shared or otherwise utilized by two or more individuals at any time. You agree to timely deauthorize all Users that are no longer authorized to have access to the Software. You agree to maintain, and to cause all Administrators to maintain, the security of all information relating to your account access under this Agreement, including login credentials, and Company shall have no responsibility for any loss, damages or liability in connection with any lost or stolen account access information.
1.3 Software Access and UserID. You agree to promptly cancel the UserID or other credentials of any Administrator or User who (i) ceases to be engaged by you as a member, employee or independent contractor, (ii) you no longer wish to have access to the Software for any other reason, or (iii) who you know or reasonably believe is in breach of any provision of this Agreement or is in any way misusing the Software. You are responsible for all acts and failures to act of your Users, and for ensuring that all Users are permitted by applicable law to access the Software. Company shall have no responsibility or liability for any damage or loss caused by your failure to deauthorize a User (e.g., a terminated employee). You agree to ensure that all Users and Administrators comply with all of the terms and conditions of this Agreement.
1.4 Limitations on Use. You shall not permit anyone other than your authorized Users and Administrators to access and/or use the Software under your account. You shall not, nor permit others to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or underlying ideas or algorithms of any part of the Software, (ii) modify, adapt, translate, alter, change or create derivative works of the Software, (iii) download, copy or collect information that could be used to copy all or any part of the Software, or (iv) access or use the Software for any purpose other than the uses expressly authorized in this Agreement. You warrant, represent, and covenant that you have and/or shall properly obtain from your employees and contractors, as applicable, all consents and permissions required by applicable law or regulation (including, without limitation, the permissions and consents required under applicable privacy laws), in order for to receive, use, store and process the personal information of such employees and contractors pursuant to this Agreement.
1.5 Consent to Shared User Information. You acknowledge certain data delivered by you to Company in connection with the use of the Software or otherwise obtained from you by Company in connection with the performance of the Services may include personal information relating to Users or Administrators, including but not limited to emails, addresses or other identifying information (“Personal Information”). You further acknowledge that each User of the Software will have limited access to Personal Information of other Users including email addresses and other contact information (the “Shared User Information”). You hereby consent to the disclosure of such Shared User Information to any other User for the purpose of accessing certain services provided by the Software and further agree to obtain such consent from each of your authorized Users prior to granting such User access to the Software or the Site. You agree not to directly or indirectly disclose, use, sell, license, publish, reproduce, or otherwise make available to any person or entity any confidential information or Shared User Information of any other User or Licensee without such party’s prior written consent.
1.6 Consent to Location Based Services & Data. The Software may contain or use location-based services. If you enable, use or access such location-based services in connection with the Software, you hereby consent to the collection, transmission and use of your location by date in the Software. Information about the Software’s collection and use may include verifying or otherwise recording your location for the purposes specified herein.
1.7 Technology Platform. You acknowledge that the Software and Services constitute a technology platform that enables Users to arrange and schedule transportation and/or logistics services among independent parties for commercial purposes. YOU ACKNOWLEDGE THAT COMPANY DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER AND ANY TRANSPORTATION OR LOGISTICS SERVICES PROVIDED BY USERS ARE INDEPENDENT OF AND DISTINCT FROM THE SERVICES PROVIDED BY COMPANY AND THAT ALL SUCH TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTIES WHO ARE NOT EMPLOYED BY COMPANY
1.8 Third Party Services and Third Party Equipment. You expressly acknowledge that the Services may be used to connect with others for the provision of transportation or logistics services and that use of the Services may require wireless internet service, SMS and/or MMS texting services and/or other data services, together with third party drivers, Users or other personnel (collectively, “Third Party Services”). You agree that each party providing any service other than the Services defined herein (collectively, “Third Party Service Providers”) shall provide such service independent of the Services provided by Company and that you and/or your Users are solely responsible for obtaining any and all necessary equipment that may be required by any Third-Party Provider (collectively, “Third Party Equipment”). You acknowledge that Company does not endorse any Third Party Service Providers and make no representation as to such Third Party Service Providers’ ability, suitability, reputation or level of service.
II. RESERVATION OF RIGHTS
2.1 Ownership. The Software and all components thereof, and any trademarks, service marks, logos, taglines, trade names, trade dress, URLs and/or domain names related to the Software or Site, and all intellectual property rights therein (including, without limitation, all rights under patent, copyright, trademark, and trade secret laws), are and shall remain the sole and exclusive property of Company, throughout the world and in perpetuity. Furthermore, if your or any of your Administrators or Users suggests new features or functionality that Company, in its sole discretion, adopts for or incorporates in the Software or Services, then all such new features or functionality will be the sole and exclusive property of Company, and you (on your own behalf and on behalf of your Administrators and Users) agree to and do hereby irrevocably grant, transfer, and assign automatically to Company upon creation all right, title and interest in and to such new features or functionality, throughout the universe and in perpetuity, without any requirement for further notice or additional consideration.
2.2 Reservation of Rights. Except for the rights expressly granted by this Agreement, Company owns and retains for itself all right, title and interest in the Software and Site. Company does not, by this Agreement or by giving you access to the Software or Site under this Agreement, grant to you any right or license to change, make additions or deletions to the Software or to copy, create derivative works, print, use or incorporate in any other system, program, product, or service, or translate into any language(s), including machine languages, the Software, other than those used on the forms published and provided by Company. If, despite the prohibition contained in this section, you creates any derivative works based on the Software, in whole or in party, you agree that such derivative works shall be deemed “works for hire” and agree to assign all right, title and interest in and to all such derivative works (including to all intellectual property therein or related thereto) to Company, which shall be the exclusive owner of all such right, title and interest.
2.3 Injunctive Relief. You acknowledge and agree that the Software and Site contain the Company’s valuable trade secrets, confidential and proprietary information. You further acknowledge that any actual or threatened breach or violation of Sections 1 or 2 of this Agreement will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for any such breach or violation, and that Company may seek such relief without requirement of posting of bond.
III. DATA COLLECTION AND PRIVACY
4.1 Updates. Company reserves the right, in its sole discretion, at any time and without any obligation to notify, to update, improve, replace, modify or alter the specifications for and features and functionality of all or any part of the Software. Software updates may be installed in different ways to include error repairs, system software updates, app updates and updates to any previously installed software (including all-new versions) and performance enhancements. Some apps may have automatic update functions, and may download and install new versions to a device automatically.
4.2 Incorporation into Agreement. Any update provided by Company for replacement or supplement software is governed by this Agreement unless such update is accompanied by a separate agreement. If you decide not to download and use an update provided by Company, you understand that you may place the Software under serious security risk or cause the Software to be unusable or unstable. Some of the functions of the Software may be limited based on the version and updating to the latest version may improve your user experience.
5.1 Fees and Payments. You agree to pay Company all fees associated with your use of the Software, in accordance with the terms of the Site and any charges issued pursuant thereto. Payments for subscription orders shall be automatically process as provided on the Site. All payments shall be non-refundable, and made without any deduction or setoff. You agree to pay Company’s reasonable and customary costs of collection, including Company’s reasonable attorneys’ fees and court costs, in connection with all late or missing payments.
5.2 Taxes. The fees due to Company do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with use of the License and Software.
6.1 Term; Termination. Either you or Company may terminate this Agreement at any time. If your account is created on behalf of a legal entity which includes an Administrator or additional Users, termination of your account will also terminate all Administrator or additional User accounts linked to your account. Company reserves the right to recover any charges owed in connection with the Services or License before the cancellation of your account. Termination of your account will be completed within a reasonable period of time after receipt of your request. Company may terminate or suspend this Agreement or the Site at any time, without notice, and for any reason.
6.2 Consequences of Termination. In the event of termination or suspension of your account, you may lose, and Company may delete, your profile and all related information. However, to the extent permitted by applicable law, Company reserves the right to store your profile and any content uploaded by you. Provisions of this Agreement that are, due to their nature, intended to survive, shall survive the termination of this Agreement and your account.
VII. LIMITATION ON LIABILITY; INDEMNIFICATION
7.1 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PROVIDES THE SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. YOU EXPRESSLY ASSUMES ALL RISKS AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE SOFTWARE AND/OR SITE. COMPANY DOES NOT MAKE ANY WARRANTIES OTHER THAN AS EXPRESSLY STATED HEREIN CONCERNING THE SOFTWARE, SITE OR THE SERVICES; AND COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, (i) ALL WARRANTIES WITH RESPECT TO MERCHANTABILITY, CONFORMITY TO ANY SPECIFICATION OR DESCRIPTION, EXISTENCE OF ANY LATENT OR PATENT DEFECTS, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, (ii) ALL WARRANTIES WITH RESPECT TO ANY THIRD PARTY SERVICES, OR (III) ANY WARRANTY THAT THE SOFTWARE WILL MEET ALL OF YOUR REQUIREMENTS, WILL OPERATE WITH ALL THIRD PARTY SERVICES AND/OR THIRD PARTY EQUIPMENT, OR THAT THE USE OF THE SOFTWARE, SITE OR SERVICES WILL BE ERROR FREE. THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
7.2 Limitations of Liability. 7.2.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY EXPRESSED OR IMPLIED HEREIN IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY USERS, ADMINISTRATORS OR ANY OTHER EMPLOYEE, CONTRACTOR, MANAGER, AGENT OR OTHER PERSONNEL (THE “USER PARTIES”) FOR ANY OF THE FOLLOWING, WHETHER COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS AND LOST SAVINGS; (ii) ANY CLAIM ASSERTED BY ANY THIRD PARTY (EXCEPT FOR THIRD PARTY CLAIMS SUBJECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.3.1); (iii) TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY CLAIMS OR DAMAGES RESULTING FROM DEATH OF OR INJURY TO ANY OF THE USER PARTIES OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, IMPROPER USE, OR INABILITY TO USE THE SOFTWARE; AND, (iv) ANY LEGAL FEES OR OTHER EXPENSES RELATED THERETO (EXCEPT FOR THIRD PARTY CLAIMS SUBJECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.3.1).
7.2.2 THE TOTAL LIABILITY OF COMPANY WILL BE LIMITED TO THE LESSER OF YOUR ACTUAL DIRECT DAMAGES, IF ANY OR YOUR CUMULATIVE PAYMENTS ACTUALLY RECEIVED BY COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE, PROVIDED THAT THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.3.1 BELOW.
7.2.3 COMPANY’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION OF GOODS OR LOGISTICS SERVICES AMONG USERS OR THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT COMPANY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OR LOGISTICS SERVICES PROVIDED TO YOU BY SUCH USERS OR OTHER THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
7.2.4 THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL CONDITION OF THE AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION 7.2 SHALL APPLY REGARDLESS OF THE FORM, NATURE OR TYPE OF CLAIM OR CAUSE OF ACTION ASSERTED BY ANY USER PARTIES, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT, REGARDLESS OF THE REASON FOR SUCH TERMINATION.
7.3.1 Company’s Indemnification Obligations. If a third party makes a claim against you that your use of the Software as provided in this Agreement infringes its intellectual property rights, Company, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement, if you do the following: (i) notify Company promptly in writing, not later than 30 days after you receive notice of the claim; (ii) give Company sole control of the defense and any settlement negotiations; and (iii) give Company the information, authority, and assistance it needs to defend against or settle the claim. If Company believe or it is determined that the Software may have violated a third party’s intellectual property rights, Company may choose to either modify the Software to be non-infringing or to obtain a license to allow for continued use. Company will not indemnify you if you alter the Software or use it outside the scope of this Agreement or if you use a version of the Software which has been superseded. Company will not indemnify you to the extent that an infringement claims is based on any information, design, specification, instruction, software, data, or material not furnished by Company. This section provides your exclusive remedy for any infringement claims or damages.
7.3.2 Your Indemnification Obligations. You will indemnify, defend and hold harmless Company and its affiliates, and their respective officers, directors, members, shareholders, employees, successors and assigns, from and against all losses, claims, judgments, liabilities, damages, fines, penalties, assessments, actions or causes of action (including reasonable attorneys’ fees and court costs) arising out of or in connection with (i) any use of the Software, Site or Services, (ii) your obligations under this Agreement, (iii) your negligence or willful misconduct including any of your Users, Administrators, or other employees, contractors, personnel or agents, or (iv) claims by any of your employees, contractors, agents or other personnel for compensation of any kind. This Section shall survive termination of this Agreement, regardless of the reason for termination.
8.1 Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the substantive and procedural laws of the State of Ohio in the United States, without reference to its conflict of laws principles. You hereby consent to the personal jurisdiction of the State of Ohio, acknowledge that venue is proper in the state court in Franklin County, Ohio or federal court in the Southern District of Ohio, and agree that any action arising out of or related to this Agreement must be brought exclusively in a state or federal court in the State of Ohio.
8.2 Force Majeure. Company shall not be deemed to be in breach of its obligations under this Agreement by reason of its failure to perform its obligations hereunder if such failure is due to fire, flood, earthquake or other natural disaster; labor dispute; pandemic, terrorist act or act of war; law, decree or order by any governmental authority; or any other similar cause beyond such party’s control.
8.3 Waiver; Severance. Waiver by Company of a breach of any of the provisions of this Agreement will not operate or be construed to be a waiver of any subsequent breach. No delay on the part of Company in exercising any rights hereunder, or failure to exercise the same, shall operate as a waiver of such rights and no notice to or demand shall be deemed to be a waiver of your obligations. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired thereby. You may not assign or transfer this Agreement without obtaining Company’s prior written consent, and any purported assignment or transfer in violation of this Section 8.4 will be null and void.
8.4 No Third-Party Beneficiaries. Except as expressly set forth herein, nothing in this Agreement shall be construed as giving any person or entity (other than you, Company and their respective successors and permitted assigns) any right, remedy or claim under or in respect of this Agreement or any provision hereof.
8.5 Marketing Rights. You grant to Company a limited, non-exclusive, royalty-free license to use your name and approved logo (if applicable) to market and promote the Software and on Company’s website or in promotional material.