Terms and Conditions
APPLICATION USE AGREEMENT FOR SHIPPERS
This Agreement provides the terms and conditions under which you use the Xtend TMS application (the “Application”). The Application was created by Efreightsolutions, LLC (“EFS”) and is licensed by EFS to Xtend TMS, Inc. (“Xtend”). The Application is available only to shippers and freight brokers. This Agreement is for use of the application as a shipper.
The Application is intended to allow you, as the customer of a freight broker, to interactively make arrangements for the shipment and carriage of freight. This Agreement provides you a limited right to use the Application. Your rights to use the Application are strictly limited to those that are set forth in this Agreement. Xtend reserves all other rights relating to the Application.
Please read this Agreement carefully. BY USING THE APPLICATION, YOU ARE ENTERING INTO THIS AGREEMENT. DO NOT USE THE APPLICATION IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT.
When used in this Agreement, the term “you” means the shipper entering into this Agreement. If you are a corporation, limited liability company, or other entity, a representative authorized by you will enter into this Agreement for you. The person who enters into this Agreement for you hereby represents and warrants to Xtend that he or she is authorized to act for you.
This Agreement May Change
Xtend reserves the right to change the terms of this Agreement without notice to you. Each time that Xtend makes a change to this Agreement, you will not thereafter be able to use the Application, and the right granted to you in this Agreement will be suspended, until you agree to the new version of this Agreement. Each time you access or use the Application, you will be doing so under the then current version of this Agreement.
Grant of Limited Right to Use the Application
Xtend grants you a nonexclusive, revocable, nontransferable, and non-assignable right to access and use the Application under and in accordance with the terms of this Agreement.
No Obligation to Use the Application
This Agreement does not obligate you to use the Application. Each time that you use the Application, you will do so by choice and knowing that your use is subject to all of the terms of this Agreement. If you choose to use the Application, you may thereafter stop using the Application at any time and for any reason (or for no reason).
Your Freight Broker
You are using the Application as the customer of a freight broker. This Agreement is not between you and your freight broker and does not modify any agreement between you and your freight broker.
Your freight broker may create a dedicated and branded page for you in the Application (a “Customer Page”). If you have a Customer Page, you hereby grant Xtend and EFS a fully paid, royalty free, and non-exclusive license to use your name and any trademarks, service marks, logos, commercial symbols, slogans, tag lines, and other identifiers associated with your name that you or your freight broker provide to Xtend (collectively, “Marks”) for display on your Customer Page. This license allows EFS and Xtend to use your Marks to identify you in the Application or promotional materials relating to the Application and will be in effect at any time that a Customer Page exists for you. You represent and warrant to EFS and Xtend that none of your Marks infringe or violate any intellectual property or other right belonging to anyone.
Booking Shipments in the Application
When you book a shipment in the Application (a “Shipment”), you will select the motor carrier with which that Shipment is placed (the “Carrier”). Each Shipment will be subject to its Carrier’s then applicable rules tariffs, which you may access through the Application. You understand that a Carrier’s tariffs may limit obligations and remedies with regard to loss or injury to property under 49 U.S.C. §14706.
The shipping rates that are shown to you in the Application are set for you by your freight broker.
All Shipments will be brokered through the Application by Xtend as a “broker” under 49 U.S.C. §13102(2) and 49 C.F.R. §371.2(a), and as “brokerage” under 49 C.F.R. §371.2(c). However, this Agreement is not an agreement for brokerage between you and Xtend. Xtend will broker Shipments as a service to your freight broker under the terms of an agreement between Xtend and your freight broker. No Carrier will be considered to be a subcontractor of Xtend. Xtend will not act as, and will not be considered to be, the principal or the agent of any Carrier. Xtend will not have, and will not be considered to have, any control over any Carrier or the drivers, equipment, operations, or activities of any Carrier.
Bills of Lading
When you book a Shipment, the Application will generate a Bill of Lading for that Shipment and you will issue that Bill of Lading to the Carrier at the point of origin. The Bills of Lading generated by the Application will show your freight broker as freight broker, the Carrier as carrier, and Xtend’s name or identification number as Third Party Freight Charges Bill To. You will only use a Bill of Lading that is not generated by the Application for a Shipment if (a) the Application fails to generate a Bill of Lading for that Shipment, and (b) the Bill of Lading that you use shows your freight broker as freight broker, the Carrier as carrier, and Xtend’s name or identification number as Third Party Freight Charges Bill To.
Freight Loss or Damage Claims
This Agreement is not an agreement for brokerage or other services between you and Xtend. If you have a loss, damage, delay, or shortage claim relating to a Shipment, you will look to your freight broker with regard to that claim. While Xtend may provide assistance to your freight broker as part of its service to your freight broker, you will not assert your claim against Xtend. Xtend will have no liability to anyone for any loss, damage, delay or shortage claim relating to any Shipment.
Accessing the Application
The Application is hosted by EFS and you will connect to EFS’ servers when accessing and using the Application. When you use the Application, you will comply with EFS’ access, security, and other requirements, as those requirements are made known to you. You will ensure that each person in your organization who uses the Application (a) is authorized by you to use the Application and bind you to transactions made through the Application, (b) is assigned a separate identification and password (“Credentials”) by you and uses only those Credentials when using the Application, (c) logs-off from the Application immediately following each use of the Application, and (d) does not disclose, or allow others to use, his or her Credentials, other than for managerial, supervisory, or administrative purposes that you have approved. You will disable the Credentials of any person in your organization that no longer requires access to the Application, including by reason of a separation from employment.
Termination of Your Ability to Use the Application
Xtend may disable or terminate your ability to use the Application at any time and for any reason (or no reason) without notice to you.
Changes in Appearance, Content, or Functionality
EFS or Xtend may change the appearance, content, or functionality of the Application at any time and from time to time without notice to you. All upgrades or enhancements to the Application that are made available to you will be subject to the terms of this Agreement, unless additional or different terms are contained in subsequent versions of this Agreement.
Intellectual Property and Other Rights
The Application and its content are protected by copyrights, service marks, trademarks and other intellectual, proprietary, or legal rights. Some of the Application’s content is used by Xtend under a license. Service marks, trademarks, and other copyrighted materials that appear in the Application are owned by their respective owners. No intellectual property or other right transfers to you under this Agreement or by your use of the Application. If you provide Xtend any ideas or suggestions relating to the Application, you hereby grant Xtend a perpetual, unconditional, unrestricted, irrevocable, fully paid, royalty free, and freely transferable license to use and exploit those ideas or suggestions in any manner and for any purpose, without any right to compensation from Xtend and free of all moral, intellectual property, proprietary, trade secret, and other rights.
Third Party Service Providers
Xtend will use the services of EFS and other third parties (together, “Third Party Providers”) in connection with the operation of the Application and transactions conducted through the Application. Many of the provisions of this Agreement benefit Third Party Providers, and all Third Party Providers are intended beneficiaries of those provisions. However, no Third Party Provider is making any promise or commitment to you in this Agreement.
Your Use of the Application
You will use the Application only as expressly permitted in this Agreement. You will comply with any user guides, rules or policies that Xtend may publish with regard to the use of the Application, provided that those user guides, rules or policies are presented in the Application or a link to the Application. Xtend may change any of those user guides, rules or policies at any time without notice to you. Without limiting any other provision of this Agreement, you will not (a) engage in any conduct that, in any manner, inhibits or interferes with the ability of any other user to use the Application including, without limitation, by way of your use of any device or software, (b) modify the appearance of the Application, (c) engage in any “hacking” or “spamming” activity through or relating to the Application, (d) communicate with, on or through the Application in any unlawful, harmful, offensive, threatening, abusive, harassing, tortious, libelous, defamatory, obscene, profane, pornographic, sexually explicit, vulgar, bigoted or otherwise objectionable manner, including, without limitation, any manner that encourages activity that would constitute a criminal offense, give rise to civil liability, or violate any law, (e) copy or re-publish any part of the Application or prepare derivative works of or from any part of the Application, or decode, decompile, disassemble or otherwise reverse engineer any part of the Application, (f) use any framing technique to enclose any part of the Application, (g) use any robot, spider, scraper or other automated means to access the Application for any purpose, including, without limitation, performing offline searches or mirroring, or (h) bypass any systems that EFS or Xtend use to restrict access to the Application. You will not alter or modify any disabling mechanism in the Application.
Information You Enter into the Application
Information that you enter into the Application will not be treated in a confidential manner and may be viewed and used by others. You will not enter information that you consider to be confidential or proprietary into the Application.
Collection and Use of Data
When you visit the Application, servers and other equipment may automatically collect information that includes (but is not limited to) information relating to the booking of Shipments and other activity in the Application, information that is entered into the Application, the dates and lengths of uses of the Application, the names of users’ internet service providers, the names and addresses of websites from which users visit the Application, and the types of users’ computers, devices, or software. Some of that information will personally identify you. Xtend may use or disclose the information that the Application collects in any way that is not prohibited by applicable law. Among other things, Xtend may use the information that the Application collects to (a) complete transactions by you through the Application, (b) respond to your inquiries, provide you notices, and otherwise communicate with you (c) make proposals to you, (d) personalize your use of the Application, (e) analyze your use of the Application, (f) diagnose and resolve problems that you have with the Application, (g) advertise, promote and market the Application or other services, (h) develop new services, (i) preserve or assert legal claims or defenses, (j) comply with legal obligations, and (k) respond to law enforcement investigations. Some of these activities will require that information is disclosed to third parties. Xtend may disclose information that the Application collects to your freight broker. If information collected by the Application is protected by a law that is applicable to Xtend, Xtend will handle that information in accordance with that law. However, Xtend will have no responsibility or liability to you for any failure to comply with any law that is attributable to malicious or unlawful conduct. Use of the Application is limited to shippers and freight brokers. The Application is not directed to children under the age of 13 and does not request or collect information that allows the determination of a user’s age. XTEND HAS NO RESPONSIBILITY OR LIABILITY FOR OR RELATING TO THE PRIVACY POLICIES OF ANY OTHER WEBSITE, OR THE MANNER IN WHICH ANY DATA IS COLLECTED OR HANDLED BY ANY OTHER WEBSITE.
Advertisements, Links, and Social Media Plug- Ins
Xtend may place third party advertisements (by persons or entities other than Xtend), links to other websites, or social media plug-ins in the Application. You will not consider those advertisements, links, or plug-ins as endorsements of any kind by Xtend. Your use of any website that is linked to the Application will be subject to the usage agreements and privacy and other policies of that website. Xtend is not the manufacturer, seller, or provider of any product or service that is available from a website that is linked to the Application or the subject of any third party advertisement that appears in the Application. Xtend makes no representations or warranties, and has no responsibilities, with regard those products and services. You will not link the Application to any other website without Xtend’s express written consent.
The Application is hosted by EFS and will be covered by such protections against loss, destruction, manipulation, unauthorized disclosure, and access by unauthorized persons as EFS may have in place from time to time. However, Xtend does not, and cannot, guarantee that information that you enter in the Application, or that is collected on the Application, will be secure.
The Application is provided to you on an “as is” and “as available” basis, without any warranty whatsoever, whether express or implied. You have no assurance, and Xtend makes no representations or warranties, that the Application will perform its intended functions or operate without error. XTEND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, OF ANY TYPE, KIND, NATURE OR DESCRIPTION WHATSOEVER, WHETHER EXPRESS OR IMPLIED AND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WITH REGARD TO THE APPLICATION.
Limitations of Claims and Liability
Under no circumstance will Xtend or any Third Party Provider be liable to you for, and to the maximum extent permitted by applicable law, you hereby knowingly and voluntarily release Xtend and all Third Party Providers from, any claim relating to, any loss or damage of any kind that you might directly or indirectly suffer (including, without limitation, direct, indirect, incidental, special, consequential, or punitive damages, and lost profits) as a result of: (a) any malfunction or error in the operation of the Application, (b) your inability to use the Application, (c) any delay in or interruption of your use of the Application, (d) any loss or corruption of any data that you enter into the Application, (e) your reliance upon any information presented in, produced by, or gathered from, the Application, (f) your access or use of any website to which the Application may be linked, (g) the transmission of any virus, worm or other corruptive, contaminating or destructive mechanism from the Application to any computer or device used to access or communicate with the Application, (h) any intentional or unintentional use, disclosure or publication of, or access to, any information entered by you or others in the Application, or information collected by the Application, including, without limitation, use, disclosure, publication, or access occurring by reason of malicious or unlawful conduct (for example, “hacking”) or insufficient or defective security mechanisms, (i) any loss, damage, delay, or shortage relating to any Shipment, (j) any loss of or damage to any personal property that results from or relates to any Shipment, (k) any bodily injury or death that results from or relates to any Shipment, (l) anything that you authorize Xtend to do, or agree Xtend can do, in this Agreement, (m) any failure by you to comply with the terms of this Agreement, or (n) anything that is your responsibility under the terms of this Agreement. You will not directly or indirectly start or participate in any lawsuit or other legal or administrative proceeding or proceeding against Xtend or any Third Party Provider with regard to any claim of a type described in the above paragraph. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL XTEND OR ANY THIRD PARTY PROVIDER BE LIABLE TO YOU FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, BUSINESS, OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), WITH RESPECT TO THIS AGREEMENT, YOUR USE OF THE APPLICATION, OR ANY TRANSACTION THROUGH THE APPLICATION, EVEN IF XTEND OR A THIRD PARTY PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. YOU WILL START A LAWSUIT FOR ANY CLAIM THAT YOU MAY HAVE OR CLAIM TO HAVE AGAINST XTEND OR ANY THIRD PARTY PROVIDER RELATING IN ANY WAY TO YOUR USE OF THE APPLICATION WITHIN ONE YEAR FOLLOWING THE DATE ON WHICH THAT CLAIM FIRST ARISES, AND THAT CLAIM WILL BE FOREVER BARRED IF YOU FAIL TO DO SO.
You will indemnify, defend and hold harmless Xtend and all Third Party Providers from and against any and all losses, costs, and damages, including reasonable attorney’s fees, incurred or suffered by Xtend or a Third Party Provider in connection with, arising from, or in any manner relating to your failure to comply with this Agreement or anything that is your responsibility under the terms of this Agreement.
U.S. Government Restricted Rights
If you use the Application on behalf of a U.S. Government agency, this Agreement constitutes the entire agreement between that Government agency and Xtend and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) 48 CFR §§ 12.211 and 12.212 (for non defense agencies) or Defense FAR Supplement (DFARS) 48 CFR §§ 227.7201 and 227.7202 (for defense agencies). Use, duplication, or disclosure of the Application or any of its components by the Government is subject to the restrictions set forth in subparagraphs (a) through (c) of the Commercial Computer Software Restricted Rights at Title 48, Chapter 18 of the Code of Federal Regulations, Section 52.227-19.
You will comply with all laws applicable to you or your use of the Application in any jurisdiction. This Agreement is governed by the laws of the State of Wisconsin, as applied to agreements entered into and wholly performed within Wisconsin by Wisconsin residents, without regard to the laws of any jurisdiction that concern conflicts of laws. Any dispute relating to this Agreement or your use of the Application will be brought and resolved exclusively in state or federal courts located in Wisconsin. You consent and submit to the personal jurisdiction of those courts. If, for any reason, any provision of this Agreement is determined to be unenforceable or invalid, that provision (or the part thereof that is unenforceable or invalid) will be deemed severed from this Agreement, and the remaining provisions of this Agreement will be carried out with the same force and effect as if the severed provision (or part) had not been a part of this Agreement. Xtend may assign or transfer any of its rights under this Agreement, in whole or in part, without notice to you. No failure by Xtend to enforce any provision of this Agreement will operate as a waiver of that provision or any violation of that provision. Section headings have been used in this Agreement for convenience purposes only. They are not a part of the provisions to which they relate and they will not limit the scope of the provisions to which they relate.
This Agreement constitutes the entire understanding and agreement between Xtend and you with respect to the subject matter addressed in this Agreement and supersedes all prior or contemporaneous oral or written communications, understandings, or agreements between Xtend and you with respect to that subject matter, including, without limitation, all prior versions of this Agreement. No course of dealing, custom, or usage of trade will vary or modify any of the terms of this Agreement. NO TERM OR PROVISION CONTAINED IN ANY DOCUMENT OR INSTRUMENT THAT YOU SEND TO EFS OR XTEND, WHETHER CONSISTENT OR INCONSISTENT, IN WHOLE OR IN PART, WITH THE TERMS OF THIS AGREEMENT WILL BE OR BECOME PART OF THE AGREEMENT BETWEEN YOU AND XTEND OR OTHERWISE BINDING UPON XTEND. ALL SUCH TERMS AND PROVISIONS ARE HEREBY EXPRESSLY REJECTED BY XTEND.