KLEARNOW LTD. CUSTOMER AGREEMENT
THESE USER TERMS AND CONDITIONS ARE A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, Company, (“YOU”, “YOUR” OR “END USER”) AND KLEARNOW LTD. (“KLEARNOW”, “WE”, OR “US”) AND GOVERNS YOUR USE OF KLEARNOW’S WEBSITE, APPLICATIONS, AND TECHNOLOGY PLATFORM (COLLECTIVELY, THE “PLATFORM”). BY CLICKING THE “I AGREE” BUTTON 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 “END USER” 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 END USER 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 an application that is offered by KlearNow to End Users and/or Brokers.
“Brokers” means the customs brokers, each of whom has a contractual relationship with KlearNow for the provision of Services through the Exchange on behalf of KlearNow.
“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 Brokers who, in turn, may be engaged by End Users to perform Services.
“Effective Date” means the date that End User accepts this Agreement.
“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 End User in respect of the Services.
“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 End User to KlearNow that authorizes KlearNow to collect and remit payments on behalf of End User for the Fees and other costs and expenses payable by End User 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 through themselves, freight forwarder or other third party.
“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
2.1 Applications. In order to use the Platform (including the Exchange) on a mobile device, you must download onto your devices the relevant 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 other end users;
(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;
(v) use the Exchange for any unlawful purposes.
3.2 End User Obligations. You are responsible for:
(i) maintaining secure access to your KlearNow accounts and End User Data (including log in information and passwords), and promptly notifying KlearNow of any unauthorized use or access;
(ii) any and all activities that occur under 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;
(iv) promptly responding to any requests for information through the Exchange from KlearNow or any Broker which we have engaged for the provision of the Services; and
(v) complying with all applicable laws and regulations.
4. FEES AND PAYMENT TERMS
Fees and Payment. Each time you choose to use the Services, KlearNow will specify the applicable Fees for the relevant Shipment. By accepting the Fees for import and export declaration and continuing to use the Service, 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 the invoice. The End User shall at all times during the term of this Agreement ensure that its Payment Account has sufficient funds to pay all applicable Fees. The End User shall fully indemnify, hold harmless and reimburse KlearNow for any Fees (including all associated costs and expenses) that are not immediately available at the time a Shipment is processed through the Exchange (“Fee Payment Failure”) due to insufficient funds in an End User’s Payment Account. For the avoidance of doubt, (a) End User 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) 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 by End User; provided, that if any Fee Payment Failure is not remedied by End User 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), End User’s KlearNow account and access to the Platform shall be immediately terminated and such 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, Port handling charges and any other 3rd party fees, which shall be added to any invoice and paid separately by End User. 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.
4.1 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 your KlearNow account.
4. 2 End User is not liable for the payment of any fees or expenses directly to any Broker with respect to the provision of Services under this Agreement. End User shall promptly notify KlearNow if any Broker attempts to seek payment directly from End User.
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 are 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. 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 1.2, 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 and related systems and technologies (including, without limitation, information concerning End User Data), and KlearNow will be free (during and after the term hereof) to
(i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Exchange and other KlearNow offerings; and
(ii) disclose such data solely in aggregate or other 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 Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of the Platform.
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 End User’s failure to comply with the terms of this 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 deal result in the loss of your privacy, confidential information, End User 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 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 End User 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 by End User. 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 submit or publish on the Platform, your use of the Platform, 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 End User will be addressed to the system administrator designated by End User on its account.
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 End User without the prior written consent of the KlearNow, which may be granted or withheld in KlearNow’s sole and absolute discretion. Any attempt by End User to assign or transfer this Agreement without such consent shall be void. KlearNow may freely assign or transfer this Agreement and/or any End User 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 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.