KLEARNOW NETHERLANDS B.V. FREIGHT FORWARDER AGREEMENT
THESE USER TERMS AND CONDITIONS ARE A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN THE UNDERSIGNED FREIGHT FORWARDER, CUSTOMER NAME, (“YOU” OR “FREIGHT FORWARDER”) AND KLEARNOW NETHERLANDS B.V. , incorporated under 75625146 at 290 Weena, 10th floor, 3012 NJ, Rotterdam. We can be reached at www.klearnow.ai and navigate to the Dutch site listing all the contact forms.(“KLEARNOW”, “WE”, OR “US”) AND GOVERNS YOUR USE OF KLEARNOW’S WEBSITE, APPLICATIONS, AND TECHNOLOGY PLATFORM (COLLECTIVELY, THE “PLATFORM”). BY SIGNING BELOW INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY USING THE PLATFORM, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “FREIGHT FORWARDER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM. KLEARNOW RESERVES THE RIGHT TO DENY ACCESS TO THE PLATFORM TO ANY INDIVIDUAL OR ENTITY IN ITS SOLE AND ABSOLUTE DISCRETION. KLEARNOW and FREIGHT FORWARDER SHALL SOMETIMES COLLECTIVELY BE REFERRED TO HEREIN AS THE “PARTIES” OR, INDIVIDUALLY, AS A PARTY”.
1. DEFINITIONS
“Affiliate” shall mean, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and for such purposes, the term “control” (including the terms “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; provided that direct or indirect ownership of equity of a Person carrying more than fifty percent (50%) of the voting rights shall be considered control of that Person, notwithstanding that control in fact may be exercised by another Person or group of Persons.
“Application” means a web-based application that is offered by KlearNow to End Users, Freight Forwarders and/or Brokers.
“Brokers” means the customs brokers, each of whom has a contractual relationship with KlearNow, offering Services to End Users through the Exchange.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in the Netherlands, when banks in the Netherlands are open for business.
“Content” means the information, text, audio, video, images or other digital content and services made available on the Platform.
“Exchange” means KlearNow’s online, web-based directory and marketplace available as part of the Platform whereby End Users can obtain information about Broker (subcontracted or KlearNow employees) who, in turn, may be engaged by End Users to perform Services.
“Effective Date” means the date that Freight Forwarder executes this Agreement.
“End User” means any Person introduced to KlearNow by or through Freight Forwarder who is seeking a Broker.
“End User Agreement” means an agreement governing, among other things, the terms of an End User’s use of and access of the Exchange and the Platform, in the form provided by KlearNow to each End User.
“End User Data” means all electronic data or information, including personal data, submitted by any End User to the Exchange.
“Fees” means the amount to be paid by You for each Shipment processed by a Broker on behalf of an End User.
“Freight Forwarder Data” means all electronic data or information, including personal data, submitted by any Freight Forwarder to the Exchange.
“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, rights in software, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future.
“Payment Account” means a financial account (bank account or credit card information) communicated by Freight Forwarder to KlearNow that authorizes KlearNow to collect payment of the Fees and other costs and expenses payable by Freight Forwarder hereunder.
“Person” shall mean any individual, general partnership (including limited liability partnerships), limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association or other business organization, whether domestic or foreign, trustee, or any agencies, authorities, bodies, boards, commissions, courts, instrumentalities, legislatures and offices of any nature whatsoever, foreign or domestic, of any federal, state, county, district, municipal, city or other political subdivision.
“Services” means customs brokerage and related services to be provided by KlearNow (either directly or through a Broker) to an End User.
“Shipment“ means the movement of a specified quantity of goods at End User’s direction. “Taxes” means all applicable taxes, including, without limitation, sales or use taxes, transaction privilege taxes, excise tax, value added tax, gross receipts taxes and other charges such as duties, customs, tariffs and government-imposed surcharges.
2. Installation and use of applications
1.1 Access and Use of the Platform and the Exchange. The Platform may assign a Broker to an End User or an End User may select a Broker from a range of choices presented based on the End User’s search criteria input into the Platform. To use the Platform and the Exchange, an End User will need a device that meets the system and compatibility requirements for the relevant Content and working Internet access. Each End User must also enter into an End User Agreement prior to accessing the Platform and the Exchange. The availability of Content and features will vary between countries and not all Content or features may be available in your country. KlearNow is not responsible for and does not endorse any Content of Brokers, Freight Forwarders or any other third party made available through the Platform or any other content that originates from a source other than KlearNow. You must create an account with KlearNow in order to receive access to the Platform, including the Exchange. Please note that KlearNow is also a member of Fenex with regards to our customs and logistics conditions. The documents are titled LSC2014 and as such we are also covered under those terms and conditions. More information and full documents can be found on our website.
1.2 If You agree that End Users shall receive Services from us, you agree that we may subcontract all or some of such services to a Broker. You will not communicate with any Broker outside of the Platform or Exchange with respect to the Services provided hereunder, except with our prior written consent. You will promptly inform us if any Broker attempts to communicate with You or any End User outside the Platform or Exchange.
1.3 Access and Use of End User Data and Freight Forwarder Data. If You create an account with KlearNow and access the Platform (including the Exchange), KlearNow, Brokers, End Users and other third parties using the Platform will have access to your Freight Forwarder Data through the Platform. Freight Forwarder Data will be collected and processed in accordance with the provisions set out in the Privacy Policy, which can be found in our website. KlearNow may disclose, modify or delete your Freight Forwarder Data, or may monitor your use of the Platform. You hereby grant to KlearNow a non-exclusive, perpetual, world-wide, royalty-free, irrevocable licence (with the right to sublicence to third parties, including Brokers and End Users) to use any Freight Forwarder Data that you upload to or store on the Platform. You warrant and agree that all Freight Forwarder Data is original to and your sole creation; you own or otherwise control all rights in the Freight Forwarder Data that you deliver to KlearNow; no material of third parties was used by You in the creation of the Freight Forwarder Data unless necessary written permissions were obtained by You in advance of the Freight Forwarder Data’s use, upload, transmit or storage on the Platform; You have a licence or other valid right to use, upload, transmit and store on the Platform any End User Data that You use, upload, transmit or store on the Platform; and that you shall not transmit to KlearNow any Freight Forwarder Data or End User Data that you do not have full and free right to use. Without limiting the generality of the foregoing, KlearNow may freely use any End User Data (including your name and logo and/or use the name and logo of the company or organization You represent on KlearNow’s website and promotional marketing materials and may refer to You therein as a customer of KlearNow, in each case, without obligation or liability to You whatsoever. Additionally, KlearNow shall, in accordance with the terms of its Privacy Policy in respect of any personal data which forms part of the End User Data, have the right to collect, store and analyze anonymized data and other information related to the provision, use and performance of various aspects of the Platform, including all configuration and usage data of Freight Forwarder, End Users, and Brokers, and to use such data to improve and enhance the Platform or, for other development, diagnostic and corrective purposes in connection with the Exchange. KlearNow, End Users, Brokers and other third parties using the Platform may transfer any of your Freight Forwarder Data and any End User Data You provided to KlearNow outside of the Platform in connection with providing any Services or Content (for example, to HMRC). Any Freight Forwarder Data and End User Data provided to KlearNow as a part of Your account will not be sold or transferred to third parties, except as permitted in Section 9.7 of this Agreement. Other terms and conditions made available by KlearNow from time to time, including terms and conditions for use of certain applications may contain additional terms governing the collection, processing, storage, handling and transmission of Freight Forwarder Data and End User Data.
2. Installation and use of applications
2.1 Applications. In order to use the Platform (including the Exchange) on a mobile device, you must download onto your devices an Application. Your use of any Application will be governed by the terms and conditions presented to you by KlearNow (the “Application Terms”) during the downloading process. Please read those terms carefully before accepting them.
3. Restrictions on use
3.1 Restrictions on Use. Unless otherwise authorized under this Agreement, You may not (and will not allow any third party to):
(i) tamper with or circumvent any security technology included with the Content;
(ii) collect or harvest any personal data of any End Users, Brokers or other freight forwarders;
(iii) use the Exchange to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit materials in violation of third-party privacy or confidentiality rights;
(iv) use the Exchange in any way that is contrary to the terms and conditions of this Agreement; or
(v) use the Exchange for any unlawful purposes.
3.2 You are responsible for: (i) maintaining secure access to Your KlearNow accounts, Freight Forwarder Data and any End User Data You have access to (including log in information and passwords), and promptly notifying KlearNow of any unauthorized use or access; (ii) any and all activities that occur under Your account or any End User’s account; (iii) maintaining reasonable security mechanisms with respect to any personal information transmitted to or through, stored on, published or otherwise made available to, or disseminated through the Platform; and (iv) complying with all applicable laws and regulations.
3.3 No Reverse Engineering. You may utilize the Platform and the Exchange solely for the legitimate business purposes contemplated by this Agreement. Notwithstanding the foregoing, except as otherwise permitted by applicable law which may not lawfully be excluded, You shall not, directly or indirectly, reverse engineer or aid or assist in the reverse engineering of all or any part of the Platform or the Exchange. Reverse engineering includes, without limitation, decompiling, disassembly, or otherwise deriving source code. In addition to any other rights and remedies that KlearNow may have under the circumstances, if you do not comply with this Section 3.3, You may be subject to a range of actions, including limits on your privileges to use the Platform and the Exchange, restrictions on listings and account features, suspension of Your account, application of fees, and recovery of expenses for policy monitoring and enforcement. In addition, You hereby acknowledge that KlearNow has devoted significant time and expense to develop and maintain the Platform and the Exchange and, therefore, your violation of Section 3.3 would cause KlearNow significant harm.
4. FEES AND PAYMENT TERMS
4. 1 Fees and Payment. For Services performed by any Broker for each End User You introduced through the Platform, You will pay KlearNow, without deduction, the Fees for import and export declaration. You acknowledge that KlearNow will charge you the applicable Fee at the time the Shipment is processed through the Exchange by charging your Payment Account. If automated billing is not available on the platform; Payment terms will be net 15 days from receipt of invoice. The Freight Forwarder shall at all times during the term of this Agreement ensure that its Payment Account has sufficient funds to pay all applicable Fees. You shall fully indemnify, hold harmless and reimburse KlearNow for any Fees (including all associated costs and expenses, including collection costs) that are not immediately available at the time a Shipment is processed through the Exchange (“Fee Payment Failure”) due to insufficient funds in the Freight Forwader’s Payment Account. For the avoidance of doubt, (a) You shall indemnify and hold harmless KlearNow, and its officers, directors, employees, agents, representatives and advisors for all collection costs and other related fees and expenses (including attorney and other third party fees and expenses) incurred by KlearNow or its representatives, advisors and Affiliates in connection with any Fee Payment Failure, and (b) Your access and each End User’s access to the Platform shall be immediately and automatically suspended upon any Fee Payment Failure until such Fee Payment Failure is remedied; provided, that if any Fee Payment Failure is not remedied through the prompt payment of all associated Fees and reimbursable costs and expenses within five (5) Business Days following any Fee Payment Failure (as determined by KlearNow in its sole and absolute discretion), Your KlearNow account and each End User’s KlearNow account and access to the Platform and Exchange shall be immediately terminated and You and each End User will need to reapply for a new KlearNow account after remedying the prior Fee Payment Failure. Fees listed above are exclusive of all applicable Taxes, which shall be paid separately by You. You will also be responsible for any access or data fees from third parties (i.e. Internet or mobile provider) in connection with the use and viewing of the Platform, the Exchange and any Applications.
4. 2 Account Information. You represent and warrant that all account information provided to KlearNow, including all billing information is true and correct. You are responsible for promptly updating all billing information through the Platform.
5. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
5.1 KlearNow’s Intellectual Property. You acknowledge and agree that all Intellectual Property rights in and to the Platform, the Exchange and any Applications are exclusively owned by KlearNow or our licensors and shall, notwithstanding the terms of this Agreement, remain vested in KlearNow. You shall not acquire any proprietary right, title or interest in or to any Intellectual Property rights in the Platform, the Exchange or any Applications. All rights not expressly granted by KlearNow herein are reserved.
5.2 Aggregate Data. In addition to the rights granted by You to KlearNow pursuant to Section 1.3, and notwithstanding anything to the contrary, KlearNow shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Exchange, the Platform and related systems and technologies (including, without limitation, information concerning End User Data and Freight Forwarder Data), and KlearNow will be free (during and after the term hereof) to
(i) use such anonymized information and data to improve and enhance the Platform and the Exchange and for other development, diagnostic and corrective purposes in connection with the Platform, the Exchange and other KlearNow offerings; and
(ii) disclose such data solely in aggregate, de-identified or anonymised form in connection with its business.
5.3 License to Use Suggestions. You hereby grant to KlearNow and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Exchange, the Platform, any Applications and any other KlearNow offerings any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of the Exchange, the Platform, any Applications and any other KlearNow offerings.
6. Changes to this agreement
6.1 Changes. KlearNow may change the terms of this Agreement from time to time. Any changes will take effect immediately after you are given notice of changes; provided, however, than any change to the Fees shall become effective five (5) Business Days after you are given notice of changes to the Fees.
7. WARRANTIES
7.1 KlearNow warrants that the Services shall be provided (a) with reasonable care and skill; (b) in accordance with applicable laws; and (c) within timeframes agreed with the End User, or if no such timeframe is agreed, within a reasonable time. KlearNow shall not be in breach of warranty if such breach is caused by Your failure to comply with the terms of this Agreement or End User’s failure to comply with the End User Agreement.
7.2 Disclaimer of warranties. Except as expressly set forth herein, and to the maximum extent permitted by applicable law, KlearNow provides the Platform and Services “as is”, without warranty, condition or representation of any kind, including but not limited to, express or implied or statutory or other warranties or conditions, including warranties of satisfactory quality and fitness for a particular purpose, non-infringement, and those arising out of course of dealing, usage, or trade and does not guarantee that the Exchange or the Platform will be error-free or uninterrupted, or completely secure. You hereby acknowledge that there are risks inherent in internet connectivity that could result in the loss of your privacy, confidential information, Freight Forwader Data and/or Content. KlearNow has no obligation to provide security. Any third-party applications and Content submitted is the responsibility of the originator of that application and Content. KlearNow is not responsible for any third-party applications or Content, including without limitation any information or Content provided by Brokers, whether or not KlearNow reviewed or moderated such applications and Content. KlearNow does not in any way warrant the accuracy, reliability, completeness, usefulness, non-infringement, availability or quality of any applications or Content on the Platform, regardless of who originated such Content (including the employees, partners or affiliates of KlearNow or any Broker). KlearNow disclaims all warranties, conditions and representations including but not limited to, any implied warranties of fitness for a particular purpose, relating to such applications or Content.
8. LIMITATION OF LIABILITY
8.1 To the maximum extent permitted by applicable law, in no event shall KlearNow be liable for incidental, indirect, special, punitive or consequential damages, loss of profits, goodwill, data or data use arising from or in connection with this Agreement, whether under theory of contract, tort, including negligence, or otherwise, even if you have been advised of the possibility of such damages. Further, KlearNow will not be liable for: (i) your inability to use the Exchange or the Platform, including as a result of any (a) termination or suspension of any application or, (b) any unanticipated or unscheduled downtime of all or a portion of the Exchange or the Platform as a result of power outages, system failures or other interruptions; or (ii) the cost of procurement of substitute goods or services; or (iii) any investments, expenditures, or commitments by Freight Forwarder or any End User in connection with this Agreement; or (iv) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any Freight Forwarder Data. Notwithstanding any other provision in this Agreement, KlearNow’s total liability with respect to each Shipment processed through the Services shall be limited to direct damages caused by KlearNow in an amount not to exceed the Fees paid with respect to such Shipment (excluding any Taxes). Nothing in the foregoing or elsewhere in this Agreement shall limit KlearNow’s liability for death or personal injury caused by our negligence, or fraud or fraudulent misrepresentation.
9. GENERAL PROVISIONS
9.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
9.2 Governing law and Place of Arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions described herein. Each Party hereby waives any right to trial by jury in connection with any action or proceeding arising from or related to this Agreement. This Agreement is subject to and shall be construed in accordance with the laws of the Netherlands.
9.3 Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be settled by arbitration under the rules of the Netherlands Arbitration Institute (‘NAI’) in accordance with its rules then in effect. The place and location of arbitration shall be Amsterdam, the Netherlands.. In each arbitration, there shall be a sole arbitrator, appointed according to the list procedure. . The language to be used in the arbitral proceeding shall be English. The arbitration award shall be final and binding on the Parties and judgment on the award may be entered in any court of competent jurisdiction. The prevailing Party in any arbitration shall be entitled to reasonable attorneys’ fees and expenses from the other Party as part of the arbitration award. Either Party may request any competent judicial or other authority to order any provisional or conservatory measure (including any injunction), either prior to the institution of the arbitration proceeding or during such proceeding, for the preservation of its rights and interests.
9.4 Indemnification. You will defend KlearNow, its subsidiaries, Affiliates, officers, agents and employees from any third-party claim to the extent that it is based on content You or any End User submitted or published on the Platform or the Exchange, Your and each End User’s use of the Platform or the Exchange, Your violation of this Agreement, or Your violation of any rights of a third party.
9.5 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and shall be deemed to be have been given upon:
(i) personal delivery,
(ii) the second Business Day after mailing,
(iii) the second Business Day after sending by confirmed facsimile, or
(iv) the first Business Day after sending by email (provided that email shall not be sufficient alone for notices of termination or claims for indemnification). All Notices to Freight Forwarder will be addressed to the system administrator designated by Freight Forwarder on its account. All Notices to KlearNow will be addressed to the KlearNow’s registered address.
9.6 No Third-Party Beneficiaries. A person who is not a party to this agreement shall not have any rights under or in connection with it.
9.7 Assignment. This Agreement (including each Party’s rights and obligations) is not assignable or transferable by Freight Forwarder without the prior written consent of the KlearNow, which may be granted or withheld in KlearNow’s sole and absolute discretion. Any attempt by Freight Forwarder to assign or transfer this Agreement without such consent shall be void. KlearNow may freely assign or transfer this Agreement and/or any Freight Forwarder Data, including without limitation to its Affiliate or as a result of a merger, acquisition, corporate reorganization, or a sale of all or substantially all of its assets. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
9.8 Severability. If any provision of this Agreement is unlawful, void or for any reason declared unenforceable by any court of competent jurisdiction, that provision shall be deemed severable from, and shall in no way effect the validity or enforceability of, the remaining provisions.
9.9 Force Majeure. No Party shall be liable for, or considered to be in breach of this Agreement on account of, any failure or delay in performance of any of its obligations hereunder (except for the payment of money) if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection, pandemic, intervention of any government or authority or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.
9.10 No Waiver of Rights; Cumulative Remedies. The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other Party of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party’s right to enforce such provision in future. The remedies provided in this Agreement are in addition to any other remedies at law or in equity, except as expressly provided otherwise herein.
9.11 Survival. Sections 3.2 (“Freight Forwarder Obligations”), 3.3 (“No Reverse Engineering”), 5 (“Intellectual Property Rights, Ownership and Title”), 7 (“Disclaimer of Warranties”), 8 (“Limitation of Liability”), and 9 (“General Provisions”) of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after the termination date.
9.12 Specific Performance. You agree that irreparable damage, for which monetary damages (even if available) may not be an adequate remedy, would occur in the event that You do not perform any provision of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, You acknowledge and agree that KlearNow may be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which KlearNow is entitled in law or in equity. You agree that You will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that KlearNow has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. KlearNow will not be required to provide any bond or other security in connection with seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.
9.13 Independent Contractor. Each Party is an independent contractor of the other Party under this Agreement. Nothing contained herein is intended or is to be construed so as to constitute any of the Parties as partners, agents, or joint venturers or establish any other fiduciary relationship. No Party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party. Nothing in this Agreement shall be deemed to create any employer-employee relationship between You and any of KlearNow’s employees and the Parties expressly agree that no joint employer relationship shall exist with respect to any employee of KlearNow who performs services hereunder, on the one hand, and You, on the other hand.
9.14 Termination. You may terminate this Agreement at any time, without cause by providing KlearNow with written notice of termination. KlearNow may terminate this Agreement at any time, without cause by providing You with written notice of termination. Upon any termination of this Agreement, all KlearNow accounts held by Freight Forwarder and all End Users will be immediately closed.
