This Services Agreement is entered into by LNJ Enterprises LLC (“LNJ Enterprises”), having principal offices at 460 Briarwood Drive Suite 400, Jackson, Ms 39206 and the Customer (“Customer”).
“App” means a Mobile Device Application.
“Authorized Contact” means named individuals designated by the Customer as having security authorization to contact LNJ Enterprises to discuss testing programs and activity and/or seek assistance related to these Services.
“Customer” means the legal entity specified on the Schedule, which shall include any subsidiary or division in which the Customer has a 50% ownership.
“Electronic Logging Device (ELD)” refers to the hardware device provided by a LNJ Enterprises vendor that directly connects to a truck and provides information to LNJ Enterprises.
“Schedule” means the sections below which outlines the program specific details.
“Service Commencement Date” refers to the date of the order.
“Subscription Service” means any program that is offered by LNJ Enterprises on an annual or monthly basis.
“Point Product” means any product that is sold by LNJ Enterprises to the Customer on an individual, non-renewing basis.
“Protected Data” means any information specific to the Customer, which includes employee name, address, social security number, credit card number, etc.
“Software” means any software utilized on LNJ Enterprises portal or App that was downloaded from any App store or distribution platform.
II. Service and Customer Data License Grant
License Grant for Services. As Customer is purchasing a service, as set forth on the applicable Schedule, LNJ Enterprises hereby grants to Customer a nonexclusive, non-transferable license for the term of this Agreement to: (i) utilize services including on-line tools only for Customer’s internal business needs; (ii) use the Documentation only to support the use of the Services; and (iii) make a commercially reasonable number of copies of the Documentation provided, however, that Customer reproduces and includes all of LNJ Enterprises’ copyright notices and proprietary legends on each such copy. At no time shall Customer sublicense, sell, rent, lease, transfer, distribute or otherwise commercially exploit or make Documentation available to any third-party. Customer and all of its users hereunder shall be bound by and comply with this Agreement, and Customer is solely responsible for all activities of its users and for the accuracy, integrity, legality, reliability, and appropriateness of all Protected Data. Customer acknowledges and agrees that some or all of the services purchased may be provided by one or more vendors, contractors or affiliates selected by LNJ Enterprises in its sole discretion.
Customer Data License Grant. Customer hereby grants to LNJ Enterprises and/or its Suppliers a limited non-exclusive non-transferable license to the Customer data only to the extent necessary for LNJ Enterprises or its vendors to perform its obligation in furtherance of this Agreement.
Customer hereby authorizes LNJ Enterprises to use Protected Data to perform the Services pursuant to this Agreement. In the event that LNJ Enterprises needs to access the Protected Data to respond to any technical problems, queries, or requests from Customer, Customer shall ensure that both Customer and LNJ Enterprises are permitted to do so. In such events all such access will be logged by LNJ Enterprises.
Password Protection of Service. Customer shall be responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to Customer for the purpose of accessing and using the Service. In the event that Customer makes such Passwords available to any third- party, Customer shall be liable for all actions taken by such third-party in connection with the Services. Customer shall not disclose or make available Customer’s Passwords other than to Customer’s authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and will notify LNJ Enterprises promptly of any such unauthorized use.
The Parties acknowledge that the Services may include processing information regulated by privacy or data protection laws. To the extent that any privacy or data protection laws impose an obligation upon LNJ Enterprises to comply with an individual’s request for access to or correction of their Protected Data, Customer agrees that it shall satisfy such obligations including, but not limited to, tracking compliance and retaining copies of signed approvals/applications.
III. Support Services
So long as the Customer has not lapsed in the payment of the Fees, LNJ Enterprises shall provide customer service to Customers via e-mail and phone to answer questions about our Services. Support is provided as long as a customer is covered under a Subscription Service. Normal customer service hours are 8:30 a.m. to 5:30 p.m. CST.
E-mail Communication. The Customer agrees that all agreements, notices, disclosures and other communications will be provided to the Customer electronically and will satisfy any legal requirement that such communications be in writing. The Customer agrees to keep LNJ Enterprises updated on any change to their preferred e-mail address.
Wireless Phone Policy. By providing their wireless phone number to LNJ Enterprises, the Customer expressly gives LNJ Enterprises consent to call them at this phone number – in person or through an automated system.
IV. Prices and Payment
Prices. Prices for the Services shall be the prices set forth in the applicable Schedule (collectively, the “Fees”). No refunds will be made except as provided in Section VI under “Warranty” or Section IX (b) “Termination” set forth below. Customer shall be liable for payment of all taxes (including, but not limited to, all taxes, assessments, duties, tariffs, imposts, permits sales, use, excise, import, export, value-added, or other similar tax, duty or fee) that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. LNJ Enterprises may be required to collect and remit taxes from Customer, unless Customer provides LNJ Enterprises with a valid tax exemption certificate. LNJ Enterprises shall invoice Customer for all such taxes based on the Offering provided hereunder. In no event will either Party be responsible for any taxes levied against the other Party’s net income.
Payment is due at the time of order. Preferred method of payment is credit card. LNJ Enterprises may impose late charges on overdue payments at a rate equal to the lesser of one and a half percent (1.5%) per month or the highest rate permitted by law, calculated from the date payment was due until the date payment is made and including all expenses incurred as a result of collection activities, including reasonable attorneys’ fees. LNJ Enterprises may decline to make any shipments or provide the Offering if in LNJ Enterprises’ reasonable opinion, circumstances exist which raise doubt as to the Customer’s ability or willingness to pay as provided herein. If a Customer defaults, LNJ Enterprises shall have other rights and remedies as may be provided by law.
Credit Card Authorization. For Customers utilizing credit card for payment, the Customer authorizes LNJ Enterprises to charge the credit card indicated on this authorization form according to the terms outlined in this agreement for the initial sale as well as for additional sales and annual renewal fees unless otherwise instructed. If the above noted payment date(s) fall on a weekend or holiday, Customer understands that the payment may be executed on the next business day. The Customer understands that this authorization will remain in effect until the debt is fully discharged or the Customer cancels this authorization in writing, whichever comes first, and the Customer agrees to promptly notify the business in writing of any changes in credit card account information or termination of this authorization at least 15 days prior to the next billing date. The Customer provides authorization to LNJ Enterprises to obtain updated credit card information through the Customer’s bank or third party resources in the event of card re-issue or expiration. The Customer certifies that he/she is an authorized user of this credit card and will not dispute the payments with Customer’s credit card company, so long as the transaction corresponds to the terms indicated in this Agreement.
Lapsed Fees. If the Customer has lapsed in the payment of Fees due hereunder, all such payments must be paid in full prior to the recommencement of Services and/or Support Service by LNJ Enterprises. Customer will be responsible for paying all fees associated with back Service and/or Support Services from the date that such Service and/or Support Services were stopped through to the then-current date.
Price Changes. A change in pricing of any product may be proposed by LNJ Enterprises and agreed to by the Customer. If the customer pays the invoice reflecting the price change, the customer agrees to accept services at the updated price by way of paying the invoice. If the customer does not agree to the price change, the customer should not pay the invoice and services will be terminated at the expiration of the current term.
Product Use. The use of the ELD and App while operating motor vehicles is subject to all applicable laws regarding transportation and/or safety. Using the App while driving is strictly forbidden. As such, LNJ Enterprises does not assume any liability or responsibility for any damages, losses or claims resulting from the use of the ELD or App while driving a vehicle.
V. License Grant and Restrictions
License Grant for System use. LNJ Enterprises, as set forth on the applicable Schedule, hereby grants to Customer a limited non-exclusive, non- transferable, license to access and use the system for the term of this agreement. (i) use the System only for the Customer’s internal business needs; (ii) use the Documentation to support the use of the System and/ or Related Services; and at no time will Customer, sell, rent, lease, transfer, distribute or otherwise commercially exploit or make the System, Related Services and/or Documentation available to any third party, unless specifically called out in the agreement. Customer and all of its users for whom licenses are purchased hereunder shall be bound by and comply with this Agreement.
Customer and all of its users for whom Agents are licensed hereunder shall be bound by and comply with this Agreement, and Customer is solely responsible for all activities of its users and for the accuracy, integrity, legality, reliability, and appropriateness of all Protected Data.
Restrictions. Customer specifically agrees to limit its use of the Offering as expressly authorized in this Agreement. Notwithstanding the foregoing, Customer specifically agrees not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software and/or Service or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the System, Agent and/or Documentation; (iii) use the Offering to knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) vault defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (d) vault obscene, pornographic or indecent data in violation of applicable law; or (e) propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (iv) use the Offering in any application that may involve risks of death, bodily injury, property damage or environmental damage, or in any life support applications, devices or systems; (v) use the Service in violation of any applicable laws, wherever such use occurs, and not use or require LNJ Enterprises or its service providers to use any Protected Data obtained via the Services for any unlawful purpose; (vi) gain or attempt to gain unpermitted access by any means to any LNJ Enterprises computer system, network, or database.
Customer Data License Grant. Customer hereby grants to LNJ Enterprises and/or its Suppliers a limited, non-exclusive, non-transferable license to the Customer data only to the extent necessary for LNJ Enterprises or its vendors to perform its obligation in furtherance of this Agreement. Customer hereby authorizes LNJ Enterprises to use Protected Data to perform the Services pursuant to this Agreement. In the event that LNJ Enterprises needs to access the Protected Data to respond to any technical problems, queries, or requests from Customer, Customer shall ensure that both Customer and LNJ Enterprises are permitted to do so. We also collect data in a form that does not, on its own, permit direct association with any specific individual. We may collect, use, transfer, and disclose non-personal information for any purpose. Sensitive data is
collected and stored but not sold or used to solicit business.
Password Protection of Service. Customer shall be responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to Customer for the purpose of accessing and using the Service. In the event that Customer makes such Passwords available to any third party, Customer shall be liable for all actions taken by such third party in connection with the Services. Customer shall not disclose or make available Customer’s Passwords other than to Customer’s authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and will notify LNJ Enterprises promptly of any such unauthorized use.
LNJ Enterprises warrants that all Services shall be performed in a professional manner, consistent with then-current industry standards. Customer’s sole remedy for a breach shall be, at LNJ Enterprises’ option, either to (1) re-perform such service or (2) provide Customer a refund for the allegedly defective Service. Such remedy shall only be available if the Customer notifies LNJ Enterprises in writing within thirty (30) calendar days of the completion of such Service.
Except for the warranty set forth in this section, LNJ Enterprises makes no other warranties, express or implied. LNJ Enterprises disclaims any and all warranties of merchantability and fitness for a particular purpose. The provisions set forth in this section state LNJ Enterprises’ entire responsibility and Customer’s exclusive remedy with respect to any and all breach of warranty.
VII. Limitations of Liabilities
LNJ Enterprises WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES, AND CUSTOMER HEREBY RELEASES LNJ Enterprises FROM ANY LIABILITY FOR DAMAGES ARISING UNDER ANY THEORY OF LEGAL LIABILITY TO THE FULLEST EXTENT THAT CUSTOMER MAY LEGALLY AGREE TO RELEASE LNJ Enterprises FROM LIABILITY FOR SUCH DAMAGES, PROVIDED HOWEVER, THAT CUSTOMER DOES NOT RELEASE LNJ Enterprises FROM ANY LIABILITY ARISING SOLELY FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF LNJ Enterprises (UNLESS ATTRIBUTED OR IMPUTED TO LNJ Enterprises BY REASON OF ANY ACT OR OMISSION OF CUSTOMER WHETHER AS AN AGENT OF LNJ Enterprises OR OTHERWISE). IN THE EVENT LNJ Enterprises IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE LIABLE TO CUSTOMER FOR ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OF DAMAGES RECOVERABLE AGAINST LNJ Enterprises FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO LNJ Enterprises BY CUSTOMER FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT, AND RECOVERY OF THE AMOUNT IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER, AND IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR REMEDY SET FORTH IN THIS AGREEMENT, THE AMOUNT OF DAMAGES RECOVERABLE AGAINST LNJ Enterprises WILL NOT INCLUDE ANY AMOUNTS FOR INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES,
INCLUDING LOST PROFITS, LOST INCOME, OR LOST SAVINGS, OR FOR ANY AMOUNTS WITH RESPECT TO CLAIMS AGAINST LNJ Enterprises, EVEN IF LNJ Enterprises HAS BEEN ADVISED OF THE POSSIBILITY FOR SUCH DAMAGES.
Distribution of Service. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons or property. LNJ Enterprises shall not be liable for any inconvenience, loss, liability or damage resulting from any interruption of Services.
End-User agrees to indemnify and hold harmless LNJ Enterprises, its successors and assigns, officers, directors, employees, agents and suppliers from and against any and all claims, suits, proceedings, damages, costs, expenses (including without limitation, reasonable attorneys’ fees and court costs) actions or liabilities brought or suffered by any third party arising or resulting from or otherwise in connection with information products provided by LNJ Enterprises, any breach by End-User of any of its representations, warranties or agreements in this Agreement, or its negligence or willful misconduct.
Term, Services and Support. The Agreement shall be in effect as of the Agreement, acceptance or signature on the applicable Schedule (“Effective Date”) and shall remain in effect (i) for Services for so long as the applicable Schedule is in effect, and (ii) for Software, until terminated as set forth in this Section VIII. The Initial Term and subsequent renewal period of each Schedule (if any) will constitute the “Term.”
Term, Subscription Services. Term, Subscription Services. The Term for all Subscription Services will be for an Initial Term of twelve (12) months and shall automatically renew for additional terms of twelve (12) months each unless either Party provides written notice of non-renewal at least sixty (60) days prior to the anniversary date of the Effective Date of the applicable Schedule as per Section XII, (b)., “Notices.”
Cancellation of Initial Order/Return Policy. Orders for Programs and Services: Orders for Programs and Services may be canceled for a 50% refund during the first thirty (30) days by calling Customer Service and notifying the Company of your decision to cancel.
One-time services: One-time services are non-refundable.
Product Sales: If unopened, can be returned within thirty (30) days for a refund.
Termination for Material Breach. This Agreement and/or any applicable Schedule may be terminated by either Party upon thirty (30) calendar days’ written notice for a material breach by the other Party, unless such other Party cures the breach within the thirty (30) day notification period. Termination of this Agreement or any Schedule does not relieve Customer of any outstanding payments due or any liability arising prior to termination.
Termination for Convenience. Unless otherwise stated in the applicable Schedule, either Party may terminate any applicable Schedule for convenience after the conclusion of the Initial Term by providing not less than sixty (60) calendar days advance written notice per Section XII, “Notices.” Customer acknowledges and agrees that all prepaid Fees are non-refundable, regardless of a termination that occurs according to this Section.
Termination for Changes to Applicable Law. This Agreement and/or any Schedule may be terminated by either Party if the continued relationship, the provision of the services, and/or the transactions hereunder would violate any applicable law (whether such law is existing at the time of this Agreement or thereafter modified or enacted) or result in material costs or liabilities to the terminating Party that were not anticipated as part of the Agreement.
Termination or Suspension by LNJ Enterprises. LNJ Enterprises may terminate and/or suspend Customer’s license grant and/or suspend, terminate or limit any of Customer’s use of the Offering without liability, with or without notice, based on LNJ Enterprises’ reasonable belief that: (i) the Offering is being used in breach of Section V or otherwise in a potentially harmful or unlawful manner; (ii) the use of Offering adversely affects LNJ Enterprises’ (or its Suppliers’) equipment, security network infrastructure or its service to others; (iii) a court or other governmental authority having jurisdiction issues an order prohibiting LNJ Enterprises from furnishing the Offering to Customer; or (iv) Customer fails to pay undisputed charges for the Offering after being given notices.
“Confidential Information” means any proprietary, confidential and/or trade secret information of the Party disclosing such information relating to, among other things, the Offering, technology, specifications, manufacturing methods, know-how, business or marketing plans, business relationships, and the terms of this Agreement and/or Schedule. Confidential Information shall not include information that: (i) was in the public domain when disclosed; (ii) becomes public domain after disclosure, other than as a result of the violation of this Agreement; (iii) was in the receiving Party’s possession when disclosed and was not acquired directly or indirectly from the disclosing Party; (iv) is shown by written evidence to have been developed by the receiving Party independently after disclosure without benefit of the Confidential Information; or (v) was received after disclosure from a third party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the disclosing Party. Confidential Information shall be used only in the manner contemplated by this Agreement and/or Schedule and shall not be intentionally disclosed to third parties without the disclosing Party’s written consent. The receiving Party will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than reasonable care under the circumstances.
XI. Customer Responsibilities
Customers are required to keep an updated e-mail address on file at all times. Failure to keep updated contact information on file could result in a failure to test or loss of critical information, which may prevent the customer from being compliant.
Customer is responsible for promptly responding to test requests and acknowledges that a failure to test may result in customer non-compliance.
Customer is responsible for keeping an updated list of drivers on file with LNJ Enterprises at all times. This list determines the compliance for the Customer and how the Customer will be billed. We will ask you to validate the names of the drivers quarterly based on our current information and new driver information obtained during the quarter.
XII. General Provisions
Entire Agreement. This Agreement and the Schedules represent the entire agreement between the Parties and supersede all prior discussions, agreements and understandings between the Parties. No modifications of the Agreement shall be effective unless in writing and signed by both Parties. No modifications
of the Agreement shall be effective unless in writing and signed by both Parties.
Notices. Notices related to this Agreement shall be in writing and shall be delivered by: 1) overnight courier; 2) first class mail; 3) electronic transmission or 4) facsimile.
Force Majeure. Neither party shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such Party’s foreseeable control including, but not limited to, strikes, riots, natural catastrophes, terrorist acts, governmental intervention, other acts of God, or any other causes beyond such Party’s reasonable control.
Relationships with Third Parties. No customer, end user or other person or entity not a party to this Agreement shall be considered a third-party beneficiary of this Agreement.
Assignment. This Agreement may not be assigned without the written consent of LNJ Enterprises, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may not assign this Agreement to a direct competitor of LNJ Enterprises.
Applicable Law. This Agreement shall be governed in all respects by the laws of the State of Connecticut without reference and/or regard to its conflicts of laws and principles.
Export Restrictions. Customer agrees and certifies that software, services and related information and materials that Customer receives from LNJ Enterprises will not be exported outside of the United States.
Schedule B: Driver Compliance Services
BACKGROUND SCREENING SERVICE
The Background Screening Service provides a detailed and compliant review of your driver’s qualifications and safety history. This one-time service includes the following features and products:
Set up of the Driver Qualification File
Set up of the Driver Investigation History (Safety Performance History File)
Previous Employer Background Check
INITIAL DRIVER QUALIFICATION FILE COMPLIANCE AUDIT
This Initial Driver Qualification File Compliance Audit brings your files up to a DOT-Audit standard. This one time service includes the following features and products:
Complete inspection, audit, and organization of Customer’s existing driver files
All the forms necessary to bring files into compliance (The forms will be both driver and company specific)
Company File Status Report providing an overview of all drivers with each driver’s file contents, missing elements, and items coming due
Driver File Status Report listing driver’s individual information, form completion dates and next renewal dates
DRIVER QUALIFICATION FILE MAINTENANCE
The Driver Qualification File Maintenance Service keeps your files current for ongoing compliance maintenance. This annual, recurring service includes the following features and products:
One Moving Violations Report (MVR) included for each driver, every year
Company File Status Report providing an overview of all drivers with each driver’s file contents, missing elements, and items coming due
Company Expiration Date Report organized chronologically and listing the items which are coming due for each driver
Company and driver specific forms for completion of each item coming due
Alert Program Contact of any expiring items
Telephone Consultation for support and guidance regarding the programs and applicable regulations
Fuel Tax Program
QUARTERLY IFTA TAX REPORTS
Report Creation. Each quarter, LNJ Enterprises will send you your completed IFTA Tax Report and an email detailing tax refunds and/or liabilities. Review this report carefully before signing and submitting it, along with any payment, to your IFTA jurisdiction office.
Missing Information. We will make repeated attempts to contact you to ensure that we receive your fuel tax information before each deadline. If you are non-responsive, we will create a partial Quarterly Tax Report based on the information that we do possess.
Accuracy and Payment. It is your responsibility to ensure that all of the information on the IFTA Quarterly Tax Report is accurate and complete and that the report, along with any payment, is submitted on time.
Copyright © 2021 LNJ Enterprises │ 855.960.0100