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TERMS OF SERVICE
LOGISTICS
SERVICES AGREEMENT
THIS LOGISTICS
SERVICES AGREEMENT (the “Agreement”) is entered into this 5th day of
October, 2023, by and between SWAY 4 WAY INC.,
an Ohio corporation (“Sway”), and 4Way-Transport, LLC, an Ohio limited liability
company (“4-Way").
Terms
and
Conditions
By requesting or accepting goods or
services from Sway 4 Way, Inc., and/or its subsidiaries and affiliates
(collectively, “Sway 4 Way”), the Customer agrees to the following
terms and conditions
of service (“Terms and
Conditions”).
Sway 4 Way may from time to time change
these Terms and Conditions. Any changes
are effective
immediately upon
publication on our website
at
https://www.4way-transport.com
Sway 4 Way
Privacy Policy:
https://www.4way-transport.com/terms_of_service-1.htm
BILL OF
LADING
General
Terms
and
Conditions
Please
review
these
terms
and
conditions
of
use
before
accessing,
browsing, viewing
or
otherwise
making
use
of
this
site,
the
Sway
4 Way
Platform
and
any
other
site,
web
page,
platform
or
application
operated
by
the
Company
or
any
subsidiary
or
affiliate
thereof
(each
and/or
altogether,
the
“Website”).
These
general
terms
and
conditions
(these
“Terms
and
Conditions”)
govern
your
access to
and
use
of
the
Website
and
the
procurement
of
any
services
from
the
Company
(“Services”)
by
you
(as
Customer/User,
as
defined
below).
The
Website
and
Services
are
available
for
your
use
assuming
you
agree
to
the
Terms
and
Conditions
set
forth
below.
If
you
do
not
agree
to
any
of
the
Terms
and
Conditions, do
not
access
or
use
the
Website
or
Services.
By
accessing
or
using
the
Website,
you
and/or
any
entity
or
person
you
are
authorized
to
represent
signify
your
agreement to
be bound
by these
Terms and
Conditions.
Any customer, shipper and/or
consignee or any third party acting on their behalf (hereinafter
collectively referred to as “Customer“/“User”),
accessing, entering into or using this Website and/or the Services,
agrees to these Terms and Conditions.
These
Terms and
Conditions shall
apply to
any and
all shipments
scheduled and
any other Services requested by the Customer.
4Way-Transport inc and/or any of
its respective subsidiaries (altogether the “Company”/”Sway
4 Way”)
may revise and update these Terms and Conditions from time to time. Use
of the Website after any changes to these Terms and Conditions, shall
constitute User’s consent to such changes. The updated version of the
Terms and Conditions shall at all times be
displayed at (https://www.4Way-transport.com/terms_of_service-1.htm
Any
aspect of
the Website
or Service
offered may
be changed,
supplemented, deleted
or updated
without notice at the
sole discretion of
the Company.
The
Company is
duly authorized
to operate
as an
agent, freight
forwarder or
a non- vessel
operating common carrier (NVOCC), as applicable, in its respective
countries of operation.
The Company reserves the right, in
its sole discretion, to refuse any shipment of Goods at any time.
1.
USE
OF
WEBSITE
a.
Registration:
The use
of the
Website and
the Services
offered, requires
Customer to
first complete
a registration
process via
the Website. Customer
agrees that
any information
provided by
it as part of
the registration process will be accurate, current and complete
and that Customer will
immediately inform
the Company of
any change in
such information.
Customer acknowledges
that the
Company may,
at its
sole discretion, deny
the registration
of any
Customer. Any
Customer whose
registration was accepted by the Company, shall be referred to
hereinafter as a “Registered
Customer”.
b.
Customer
Account Security:
The Registered
Customer is
and shall
be solely responsible
for maintaining
the security
of its
account and
safeguarding passwords
and the
Registered Customer
shall be
fully responsible for
any activities
or transactions
that take
place using
its accounts or passwords, even if it was unaware of such use.
Each Registered Customer hereby undertakes to
notify the Company immediately
of any
breach of
security or
unauthorized use
of its
account.
c.
Right to Access Website
and Services: The Company hereby grants to
Customer a limited non-exclusive, nontransferable, non-sub
licensable, revocable right to access and use the Website (and, to
Registered Customers, the use
of the Services), solely in conjunction with Customer’s own internal
commercial activities to which the Services relate or apply.
d.
Users:
Each Registered
Customer account
is valid
for one
Registered Customer
only and
may not
be shared
concurrently or
otherwise by
or among multiple
Customers. Users
of the
Services are
limited solely
to Registered Customer’s employees.
e.
Prohibited Use: Customer
may not (a)
use the Website to
store or transmit any
viruses or other
code designed
to permit
anyone to access the
Website in an
unauthorized manner
or to
disable, erase or
otherwise harm software, hardware, or data; (b) copy in any manner any
features or
function of
the Website
or any
data or
information there from;
(c) disclose
to any
third party
any performance
information or
analysis relating to the
Services or, any Company
proprietary information; (d)
remove, alter
or obscure
any proprietary
notices in
or on the
Website or,
infringe upon
any Company
intellectual property
rights; (e)
reverse engineer,
decompile,
disassemble, or
otherwise attempt to
discover the source
code, object
code, or
underlying structure,
ideas, or
algorithms that
make up
the Website
or any software,
documentation, or
data relating
to the
Website or
the Services, except to the limited extent that applicable law
prohibits such a restriction;
or (f)
cause or
permit any
third party to
do any
of the
foregoing. In addition to any other conditions
set forth in these Terms and Conditions, Customer undertakes: (i) not to
disguise the origin of information transmitted through the Website; (ii)
not to place false or misleading information on or through the Website;
(iii) not to use or access
any service,
information,
application or
software available
via the Website
in a
manner not
expressly permitted
by the
Company;
and
(iv)
not
to
frame
or
utilize
framing
techniques
to
enclose
any
portion
or aspect of the
Content.
f.
Right
to Terminate
Usage: The
Company reserves
the right
to deny
or revoke access
to the
Website, or
any part
thereof, or
to otherwise terminate
a Registered
Customer’s access
to the
Services, at
any time at
its sole
discretion, with
or without
cause and
without notice
to
Customer.
g.
Third
party vendors:
Customer acknowledges
that the
Company uses
third-party vendors
to provide
the necessary
hardware, software,
networking, storage,
and related
technology required
to operate
the Website, and Customer agrees that the Company is not and will
not be liable or responsible for the acts or omissions of such
third-party vendors.
2.
GOODS
AND
SERVICES
–
BASIC
TERMS
a.
“Goods”
means the
whole or
any part
of the
cargo and
any packaging
accepted from
the Customer
and includes
any container
not supplied by or on
behalf of the Company.
b.
The quotes and prices of
Services on the Website are customized and may
differ between
Customers subject
to any
legal obligation
in specific territories which requires the publishing or
otherwise displaying of set tariffs.
c. All Services which are offered
through or appear on the Website are subject to availability.
d.
Neither the description of the Services on the
Website nor any quotation displayed therein or sent to Customer (“Offered
Quotes”),
constitutes a contractual offer to sell or provide the Services. The
Offered Quotes are provided by the
Company as an estimate
dependent on information provided
by the
Customer and
may be
subject to
change on
account of variations
in applicable cargo charges, carrier handling fees (which may include,
without limitation, surcharges, fees, terminal handling charges,
port fees,
documentation fees,
customs charges,
overweight or additional weight
charges, goods classifications, special services or cargo
handling required), taxes, demurrage, etc. The Company reserves the
right to charge additional or amended charges relative to those
provided in the Offered Quotes.
e.
Inquiries
and
booking
of
Services
may
be
submitted
only
by
Registered Customers.
f. The process of obtaining price
quotations and the booking of shipping services are set out on the
Website and it is Customer’s responsibility to check
that it
has correctly
completed such
processes and
duly provided all the necessary information. The Company reserves
the right to withdraw any price or other quotation issued following a
booking which has not been duly completed and not
to perform any Services
offered.
g.
Any
quotation of
fees displayed
on or
received from
the Website
is valid for
a maximum
period of
24 hours
from the
time of
its display
or issuance, unless the
Company expressly
withdraws it
at an
earlier time or
extends the quotation time
frame, in writing. No
booking request can be
submitted for
a quotation
which expired
or was
withdrawn as
aforesaid, unless
specifically approved
by the
Company, in
writing. Without derogating from the generality of the foregoing,
the booking of any Services will be subject to a written booking request
to be completed by the
Customer and which shall specifically refer to the relevant quotation
issued by the Company, include all information requested by the Company
and be delivered to the
Company through the Website (“Booking
Request”/”Order”).
h.
Once a Booking Request has been properly
submitted through the Website, the Company can confirm it, amend the
terms and return it to Customer for confirmation or reject it at its
sole discretion.
i. Confirmation of a booking will be
subject to the receipt by Customer of an email from the Company
confirming the booking (“Booking
Confirmation”/”Order Confirmation”).
Customer is responsible to ensure
that the Order
Confirmation is complete
and accurate and
inform the Company immediately of any errors. The Company will not
be responsible for any inaccuracies in the Order Confirmation
received by Customer if these are not duly reported by Customer.
j.
Customer cannot vary an
Order after an Order Confirmation is
delivered, unless the Order Confirmation is not in compliance
with the Customer’s initial order AND unless notice of such incompliance
is delivered to the Company within forty-eight (48) hours from the
issuance of the Order Confirmation but in any event prior to delivery of
any Goods to the Company.
k.
Except as provided for in
Clause 2.9 above, if Customer requests to amend in any way an Order
after receipt of an Order Confirmation, then subject to space
availability, a restated Order Confirmation will be
issued, with updated prices, if any and Customer shall be charged
an Order modification fee.
l.
If
Customer cancels
any part
of a
shipment of
Goods after
an Order Confirmation
has been
submitted, Customer
shall be charged,
in addition to
any dead freight that may be charged
by an underlying
carrier, with a cancellation fee.
m.
If
Customer fails
to deliver
the Goods for
shipment in whole or
in part for any
reason, then
Customer shall
be charged , in
addition to any dead
freight that may be charged by an
underlying carrier, with
a no- show fee.
n.
The Company will be entitled to revise
any quote or charge, including after the Order Confirmation has been
delivered, if such change is for reasons of erroneous or incomplete
information by the Customer or for reasons beyond the Company’s control,
including, but not limited to, changes in currency exchange rates,
overweight charges, rates of third party carriers or other Company third
party logistics service providers, etc., insurance premiums (if
applicable) or modifications to any legislation, regulation or orders of
a competent governmental authority having
an impact
on the
Services, or
any other
charges applicable
to the Services or to the availability of the aforesaid third
party.
o.
Customer shall not deliver
to the Company or cause the
Company to deal with or
handle Dangerous Goods or Forbidden Goods, without the Company’s prior
express written consent.It is hereby expressly agreed that the in any
case, including, without limitation following the granting of such
consent, if the Company, at its sole discretion, determines that any
Dangerous Goods
or Forbidden
Goods (i)
are deemed
to constitute a risk
to other goods, property, life or health or (ii) owing to legal,
administrative or other obstacles whether as to their storage, carriage,
discharge or
otherwise, may
be detained
or cause
any other
property or person to be detained, then the Dangerous Goods or
the Forbidden Goods, may, without notice, be destroyed or otherwise
dealt with at the sole discretion of the Company or any other person in
whose custody they may be at the relevant time, without compensation to
and at the cost of Customer." Forbidden Goods” shall include, animals,
plants, chemicals, Perishable Goods, currency, precious metals and
stones, coins, jewelry, antiques or works of art.
p.
“Perishable Goods” shall
include such Goods as shall be, in fact or law, liable to deteriorate in
quality and/or value and shall include, but not be limited to, fruit,
vegetables, dairy products and meats.
q.
"Dangerous
Goods” shall
include such
Goods as
are, or
may become,
in
fact
or at
law noxious,
dangerous, hazardous,
explosive,
radioactive, flammable,
corrosive, toxic, infectious or capable by their nature of causing
damage or injury to other goods or to any person or animals or to
anything in which goods are carried, handled or stored, whether or
not so listed in any official or unofficial, international or
national code, convention, listing or table.
r.
No insurance or customs
brokerage related services will be effected by the Company. During the
booking process, Customer may be offered to link to a website or
platform of a third-party service provider in order to effect an
insurance or to purchase customs brokerage services directly
from such third-
party service
provider. All such
insurances and customs
brokerage services will be subject to the exceptions and conditions of
the policies of the third party providing the insurance or
the customs brokerage services. Should the insurers or the
customs brokerage services providers dispute their liability for any
reason whatsoever, the Company shall not be under any responsibility or
liability whatsoever in relation thereto.
s.
The Company shall
not be obliged to make any declaration for the purposes
of any
statute, convention
or contract
as to
the nature
or value of any Goods or as to any special interest in delivery,
unless previously approved in writing pursuant to express written
instructions received from Customer. Any declaration given pursuant to
such consent, as well as any
instructions relating to the delivery or release of Goods (including
without limitation against payment or against
surrender of
a particular
document) are
accepted by
the Company
as agents for Customer where third parties are engaged to effect
compliance with Customer’s
instructions. Notwithstanding any neglect
or default of the Company, the Company shall not be under any
liability in respect of any declaration or arrangements referred to in
this Clause
2.17.
t.
All transit times provided
by the Company in any Booking Confirmation or otherwise, are estimates
only and are not guaranteed. Estimates are based
on underlying carrier
schedules when
available and
assume timely customs clearance. Transit times are subject to
change without notice and notwithstanding any neglect or default of the
Company, it shall have no liability for any damages, whether
consequential, indirect or direct for delay in the forwarding or
transportation of the Goods.
u.
Services are provided by
the Company as an agent, except for the following
circumstances under
which the
Company acts
as a
principal:
i. Where
the Company
performs any
carriage, handling
or storage
of
Goods
but
only
to
the
extent
that
the
carriage
is
performed
by the Company
itself or
its sub-contractor
and the Goods
are in the actual
custody and control of the Company or its sub- contractors;
and
to
the
extent
that
the
Company
expressly
agrees
in
writing
to
act as a principal.
ii.
Without prejudice to the generality of this
Clause 2.19 above: (i) the charging by the Company of an inclusive price
for any Service shall not in
itself determine whether the Company is acting as an agent or a
principal in
respect of
such Service;
(ii) the
supply by
the Company
of its own or leased
equipment and/or facilities shall
not in itself
determine whether the Company is acting as an agent or a principal
in respect
of such
Services; and
(iii) the
Company always
acts as
an agent where the Company procures the issuance of a bill of
lading or other document
evidencing a contract of carriage
between a person, other than the Company, and Customer. The
Company’s Terms and Condition
for
Agent
Services,
which
form
an
integral
part
of
these Terms
and
Conditions,
shall
apply
to
any
and
all
services
provided
by
the
Company
as
an
agent
as
aforesaid.
Regarding
such
services provided
by the
Company as
an agent
– in
case of
conflict between
these Terms
and Conditions
and the
Company’s Terms
and Conditions
for
Agent
Services,
the
latter
shall
prevail.
A
current updated
copy
of
the
Terms
and
Conditions
for
Agent
Services
can
be found
here.
3.
SHIPPING
DOCUMENTATION
a.
Customer agrees
that international and
domestic carriage
by an underlying
carrier of any
shipment tendered
using the Website
shall be in accordance with the terms, conditions and limitation
of liability set on the non-negotiable bill of lading, iir waybill,
trucking bill of lading, railway bill of lading, shipping receipt or
other contract of carriage or shipping
document
(collectively, “Shipping
Documentation”)
and, when applicable, any Tariff, Service Guide, or Standard
Conditions of Carriage to
be delivered
by the
Company to
Customer, which
are incorporated into
this agreement
by reference.
If there
is a
conflict between
the
Shipping
Documentation
and
these
Terms
and
Conditions, these
Terms and
Conditions will
prevail.
b.
All Shipping Documentation
is NONNEGOTIABLE and will be prepared by Customer or by the Company as
Customer’s agent and on its
behalf and to
bind Customer.
Any unauthorized
alteration, use
of Shipping
Documentation or
tendering of
shipments of
Goods to
any underlying
carrier other
than that
designated by
the Company and/
or the use of any
Shipping Documentation
not authorized
or issued
by the
Company shall
release
the
Company
from
any
responsibility
or
liability
in
relation to
any loss,
cost, expense,
damage or
consequence arising
from such unauthorized
or invalid
use of
the Shipping
Documentation or
shipments of
Goods and
the Company
shall no
longer be
obligated to
Customer, any
shipper or
any third
party on
their behalf
to the
rate quotes related
thereto.
c.
Customer is required to
use the Website generated Shipping
Documentation.
Unless
expressly
agreed
otherwise
by
the
Company
in writing,
the Shipping
Documentation issued by
the Company constitutes
the only
authorized documents,
and any
carriage or
other Services booked by Customer shall be subject to such
respective Shipping Documentation, as may be applicable.
d.
If Customer does not
complete all the documents required for carriage, or if the documents
which it submits are not
appropriate for the Services,
pick up or destination requested, Customer hereby instructs
the Company, where permitted by law, to complete, correct or
replace the documents for such carriage, or services, pickup or
destination at the expense of
Customer. It is understood that the Company, at its sole discretion, may
refuse to follow such instruction. The Company will not be liable to
Customer or to any other person for any actions taken on behalf of
Customer under this Clause 3.4.
e.
If
Customer processes
shipments to
locations outside
the country where
shipment originated, Customer must enter, to print in lieu of a manual
signature on
the Air Waybill,
the name
of the
person completing
the
Air
Waybill
for
all
such
shipments
tendered
using
the Company.
Customer acknowledges
that such
printed name
shall be sufficient
to constitute
signature of
the Air
Waybill on
its behalf
for purpose of
the 1929
Warsaw Convention,
the 1999
Montreal Convention
and for all other purposes.
4.
CUSTOMER
COVENANTS
AND
WARRANTIES
a.
The Customer is
responsible for and warrants its compliance with all applicable laws,
rules, and regulations, including, but not limited to, customs, import
and export laws and governmental regulation of any country to, from,
through or over which any shipment of Goods may be carried.
Customer agrees
to furnish
such information
and complete and
furnish the Company with such documents (including, without limitation,
any special licenses or permits required for the
transportation, exportation, importation of handling of Goods) as
are necessary to comply with such laws, rules and regulations.
The Company assumes no
liability to Customer or to any other person for
any cost, loss, damage or expense (including, without limitation,
any fines or penalties) due to the failure of the Customer to comply
with the provisions of this Clause 4.1. The Company assumes no liability
to Customer, nor to any customs authority on behalf of Customer, for the
payment of duties, taxes, or fees owned or related to the importation of
Goods.
b.
Customer and any
individual or entity acting on behalf of Customer, in requesting or
booking shipments or other services, warrant that such person or entity
is duly authorized to act on Customer’s behalf and to legally bind it.
Customer assumes full responsibility for any such person or entity and
shall have no claim or demand to or from the Company
with respect thereto.
c.
Customer represents and
warrants to the Company as follows: (i) all items or Goods to be shipped
will be completely and accurately marked
to enable
identification of
the contents
without opening
any shipping or
storage containers; (ii)
no items
or Goods
to be
shipped shall be
deemed illegal
under any local or
international law or
regulation or,
may be
used in
connection with
any nuclear,
chemical or
biological warfare; (iii) Customer will make every effort to accurately
measure the
dimensions and
weights of
all items
and understands
that the Company rate depends,
inter alias, upon the accuracy of this information (iv)
Customer’s authorized representatives) shall be identified
to the
Company’s agent
or coordinator
and shall
be available at all
times at the point of origination to sign, and shall sign, all documents
evidencing pick-up of the items to be shipped by the Company; and (v)
Customer is the legally
documented owner of all Goods received by the Company or is
authorized to cause such Goods
to be stored, shipped and otherwise controlled by the Company as
provided in the applicable Shipping Documentation.
d.
Customer represents
and warrants that: (i) no
receipt or handling of Goods,
nor any
payment or
other transaction
involving the
Goods, shall cause
the Company
or any
third party
on its
behalf to
be noncompliant with
any trade
prohibitions,
including without
limitation, all
economic sanctions
laws and
regulations and
all export
controls administrated
by the US Department of the Treasury’s Office of Foreign Assets (OFAC)
and the Departments
of Commerce
and State;
and the
European Union
and relevant member states, as well as any other similar
applicable sanctions and
export control
laws or
regulations in
other jurisdictions;
and (ii)
no person
or entity
Customer trades
with, will
be included
in any list
of individuals
or entities
with whom
transactions are
prohibited or
restricted under
any local
or international
sanction, prohibition
or
restriction.
e.
Customer is responsible
for and warrants its compliance with all applicable laws, rules and
regulations in the context of anti-bribery and anti-corruption laws and
governmental regulations of any country to, from, through or over which
any shipment may be carried.
5.
PAYMENT;
CREDIT
APPROVAL
a.
KYC:
Upon registration
and prior
to completing
the Booking
Request, each new
Registered Customer
will need
to complete a
‘Know Your Customer’
process (“KYC”).
The KYC will be repeated from time to time as
necessary. Without
derogating from
the foregoing,
Customer undertakes to update Company regarding any changes in
shareholding structure and any material changes in company’s financial
or legal status.
b.
Currency:
Unless expressly
agreed otherwise
by the Company
or as may
be required
under any
local jurisdiction,
any amounts
due to
the Company are payable in United States Dollars.
c. Credit Check: Depending on the
territory of Customer, Customer's Payment may be processed via our third
party payment service
processor (“PSP“)
or paid directly to the Company via wire transfer. Any
purchases
made
in
the
territories
in
which
a
PSP
operates
(i.e.,
currently the United
States and Canada)
may also be subject to
our PSP’s
terms and conditions.
Our PSP
will conduct
a credit
check on
each Customer and
will either:
(i) approve
a certain
line of
credit (“Credit“)
for a Customer
(a “Credit
Customer“);
or (ii)
not approve
any credit
for a particular
Customer (a
“Cash
Customer“).
The line
of credit
approved for each
Customer will be available
on Customer’s dashboard
within the Registered Customer’s account.
d.
Payment
Terms and
Conditions:
i.
Cash
Customer: A Cash
Customer will be able to
submit an Order,
following which
it will
have the
option to
add its
bank account
information for
the purpose
of an
in-depth credit
assessment. Following
such an
assessment, if
applicable, our
respective PSP
may issue
a credit
line for
such Customer
who will become a
Credit Customer. Once that Customer receives an Order
Confirmation, it
will be
able to
proceed to
checkout where the
Customer will
be required
to pay
a deposit.
If Customer remains
in a
Cash Customer
status, the deposit
shall be
in the amount set
forth in the Order Confirmation. During the checkout, Customer
will be
able to
choose between
a credit
card payment, ACH or
wire transfer.
ii.
Credit Customer:
The Credit Customer shall have the option,
when placing its Order, to input its bank account information in
order to receive a more extensive credit check which may allow
the Credit Customer to receive a superior credit approval and an
extended credit line, subject to the sole discretion of the PSP. The
Credit Customer will be able to proceed to Order Confirmation
and checkout, as long as the Order is equal to or less than the
Credit it received. A Credit Customer who would like to book a shipment
that totals at a higher value than the approved credit
line it received, will be considered a Cash Customer for the full
amount of
the booking
and shall
be subject
to the
payment terms and conditions
which apply to Cash Customers.
e.
Additional
Charges: Customer
acknowledges that
the initial fee quote
provided by
the Company
may not
include certain
taxes, costs
and fees associated
with its shipment, including, but not limited to, VAT, other duties,
customs charges,
governmental
penalties and
fines, credit
card or wire charges (if any), demurrage, detention, dead freight
and any other unforeseen
charges that may arise in connection
with the Customer’s
shipment (“Additional
Charges”). Customer hereby
agrees and undertakes
that it
will be
responsible for
and shall
pay any
and all Additional
Charges that
may be
applied to
its shipment
of Goods. Additional
Charges may be included in the invoice issued to Customer upon the
delivery of the shipment as detailed below or in a separate invoice
which will be issued thereafter.
f. Invoicing and Payment
Time Frames:
Both Cash
Customers and
Credit Customers will receive an invoice from the Company once
the shipment is
released and
proof of
delivery is
received by
the Company. The
invoice may include any applicable Additional
Charges, or the Additional
Charges may
be included
in a
separate invoice
which will
be issued to
Customer once
such Additional
Charges are
determined. The
payment time frames and conditions shall be as follows:
i.
Credit
Customers shall
have the
option, during
checkout, to
opt to pay
any invoice
issued to
them within
30 days,
45 days
or 90 days
from the date of
the issuance of the
invoice. A payment schedule
of 30
days will
not be
subject to
any additional
fees, whereas a
payment schedule
of 45
days will
incur an
extra fee
at a rate of
0.8% of
the Order value and
a payment schedule of
60 days will
incur an
additional fee
at a
rate of
1.5% of
the Order
value.
ii.
Payment
for
Additional
Charges
shall
be
due
as
follows:
(a)
with
respect to Credit
Customers, within the payment schedule
selected by it at checkout (as explained in Clause 5.6.1 above);
or
(b) for Cash Customers, within two
(2) business days from the receipt
of the
invoice. Any
late payment
of the
Additional Charges shall be subject to the lesser of: (a)
an interest rate in the amount of 1-1/2% per month of the average
outstanding balance due; or (b)
the highest
rate of interest
permitted by
applicable law. Customer shall be liable and shall indemnify the
Company, upon first demand, for all attorneys’ and collection expenses
incurred by the Company in collecting payments not duly and timely paid.
g.
NO SET OFF. The
Customer shall pay to the Company all sums due in accordance with
Section 5.4 above, without reduction or deferment on account of any
claim, counterclaim, compensation or
set off.
6.
CARRIER’S
AND
WAREHOUSEMAN’S
LIEN
Customer
acknowledges
that
the
Company
and
its
subcontractors
and
entities
for
which
the
Company
is
acting
as
agent,
broker
or
forwarder
in
providing
the Services
hereunder (together,
the “Providers”)
have both
a carrier’s and
warehouseman’s
general lien
on all
of the
tangible property
being handled pursuant to any Shipment Documentation, including the
Goods and any documents related thereto, for all liabilities, whenever
occurring and any sums owed to the Company for Services rendered by any
third party worldwide, in the past or future, in relation to the
Goods in the
possession of
Providers or
its subcontractors.
Such lien may be
enforced by the Providers at any time at either a public or private sale
with or
without a
judicial hearing.
Customer also
grants the
Company a security
interest in any such property, until Customer has fully satisfied all
liabilities, whenever occurring, owed to the Company.
7.
CLAIMS
AND LIMITATIONS
OF LIABILITY;
DISCLAIMER OF
WARRANTIES
a.
All freight cargo claims
against carriers performing any part of carriage, should
be submitted
(72) hours or immediately
to the
Company to
help ensure timely
resolution. The Company will attempt to assist in the resolution of
freight claims, but has no responsibility or liability therefore.
b.
The
filing of
a claim
does not
relieve the
responsible party
of payment of
freight charges.
Freight charges
payment is
necessary in
order for
a carrier to help process a claim.
c.
Where
the Company
files a
damage claim
with the
carrier on
behalf of Customer
and receives
recovery funds,
the Company
shall have
a lien on such
recovery amounts and reserves the right to apply recovery amounts
to open
past due
invoices on
account. This
includes recovery
amounts received
from the
carrier for
freight charges
and/or product damage
claim amounts.
d.
The Company is not liable
for any loss, mis-delivery or non-delivery caused by: (i) an act,
default or omission of Customer or any other party who claims interest
in the shipment; (ii) the nature of the shipment
or any
defect thereof;
(iii) violations)
by Customer
of any
of these Terms and Conditions, including, without limitation, the
Shipment Documentation; (iv)
any delay
or failure of
performance, if
and to
the extent that
such delay
or failure
is caused
by an
occurrence beyond
the control of
the Company,
including, but
not limited
to, acts
of governmental
authorities, acts
of God,
pandemics, the
discovery of
materially different site conditions, wars, riots, fires, explosions,
accidents, floods, strikes, lockouts, or changes in laws, regulations,
or ordinances; or
(v) weather
conditions or
mechanical delay
or failure of vessel,
aircraft, railway,
trucks or other
equipment.
e.
Subject to the limitations
of liability contained in the Shipping Documentation, the Company shall
only be liable for loss, damage, mis-delivery or non-delivery caused by
the Company’s own gross negligence. The Company’s liability therefore
shall be limited to five (5) times
the fees
that the
Company has
earned with
respect to
the subject
shipment.
f. In
any
event, including
any neglect or
default of
the Company,
the Company shall
not be
liable for
any special,
incidental, punitive
or consequential
damages, including
but not
limited to
loss of
profits or income, or
damages resulting from loss of data or business interruption resulting
from the
use of
or inability
to use
the Website,
whether based on
warranty, contract, tort, depicts, or any other legal theory, and
whether or not the Company had knowledge that such damages might be
incurred.
g.
In
any event,
including any
neglect or
default of
the Company,
the Company shall not be liable for any special, incidental,
punitive, indirect or consequential damages, including but not limited
to loss of profits or income
resulting from
or relating
to the
Services provided
by the
Company.
h.
THE
WEBSITE,
THE
CONTENT
THEREOF
AND
ANY
SERVICES
OFFERED
THEREIN,
ARE
PROVIDED
ON
AN
“AS
IS”
BASIS.
THE
COMPANY
ITS
LICENSORS,
AND
ITS SUPPLIERS,
TO
THE
FULLEST
EXTENT
PERMITTED
BY
LAW
DISCLAIM
ALL WARRANTIES,
EXPRESS
OR
IMPLIED,
STATUTORY
OR
OTHERWISE
INCLUDING,
WITHOUT
LIMITATION,
WARRANTIES:
(i)
OF
MERCHANTABILITY
OR
FITNESS FOR
A PARTICULAR
PURPOSE; or
(ii) WITH
REGARD TO
THE WEBSITE,
INFORMATION PROVIDED
ON THE
WEBSITE OR
SERVICES RELATED
TO TRANSACTIONS
CONDUCTED
ON
THE
WEBSITE
OR
THE
RESULTS
OBTAINED BY USING THE
WEBSITE.
i.
THE
COMPANY
AND
ITS
AFFILIATES,
LICENSORS
AND
SUPPLIERS
MAKE
NO REPRESENTATIONS
OR WARRANTIES
ABOUT THE
ACCURACY, COMPLETENESS,
SECURITY
OR
TIMELINESS
OF
THE
CONTENT,
INFORMATION OR
SERVICES PROVIDED
ON OR
THROUGH THE
USE OF
THE WEBSITE.
NO INFORMATION
OBTAINED
BY
YOU
FROM
THE
WEBSITE
SHALL
CREATE
ANY
WARRANTY
NOT
EXPRESSLY
STATED BY
THE
COMPANY
IN
THESE
TERMS
AND
CONDITIONS.
j.
SOME
JURISDICTIONS
DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY,
SO
THE
LIMITATIONS
AND
EXCLUSIONS
IN
THIS
SECTION
MAY
NOT
APPLY
TO ALL CUSTOMERS.
k.
The Website includes links and connections
to other websites operated by third parties other than the Company (“Third
Party
Sites”).
The Company shall not be responsible for the availability or
content of Third-Party Sites
and will
not be a party
to, or
in any way
responsible for, any
transaction available
from or
through such
Third Party
Sites or
any information provided by the Customer to such Third-Party
Site. A link or connection
from the Website shall
not be taken as an
endorsement of any
kind by
the Company
of any
Third-Party Site
or the
owner thereof.
l.
Any claim or cause of
action arising out of or related to your use of the Website or the
Services offered must be filed within one (1) year after such claim or
cause of action arose or in the case of the Services, from the
date that the
Goods were delivered
or should have been
delivered.
m.
Customer will defend,
indemnify and hold the Company harmless from and
against any
and all
claims, damages,
costs and
expenses, including attorneys’ fees, arising from or related to
Customer’s acts or omissions in using the Website or the Services booked
there through, including, without limitation, any misrepresentation in
or breach of these Terms and
Conditions.
n.
The
Company shall
assume no
liability to
Customer or
any other person,
for any
loss or
expense, including,
without limitation,
any fines
or penalties due to
failure of Customer to comply
with any trade laws, rules,
regulations, licenses, permits or prohibitions.
8.
OBLIGATIONS OF
THE
COMPANY
The
Company
and
its
agents
agree
to
use
commercially
reasonable
efforts to,
either
directly
or
indirectly:
(a)
match
the
item(s)
of
each
shipment
of
Goods
against
the
item(s)
set
forth
on
the
shipping
directions
from
Customer;
(b)
inspect
each
shipment
of
Goods
and
note
all
apparent
damage
on
the
appropriate
freight
bill,
delivery
receipt,
or
similar
document
evidencing
delivery,
and
notify
Customer
of
such
damage;
and
(c)
deliver all
shipments
to
locations
directed
by
Customer.
The
Company
may
ship
the
items
by
any
means,
including
truck,
air,
vessel
or
any
other
carrier,
unless
Customer
gives
specific
electronic
or
written
instructions
to
the
contrary.
9.
INDEPENDENT
CONTRACTOR
a.
The Company shall at all
times be an independent contractor with respect
to Customer,
and nothing
herein contained
shall be
construed to be
inconsistent with
such relationship
or status.
b.
The Company shall engage
and/or subcontract with such entities and/or individuals as it may deem
necessary or appropriate in
connection
herewith,
and
on
any
terms
whatsoever,
it
being
understood and
agreed that
such entities
or individuals shall
be subcontractors
of the Company only
and shall
be subject
to discipline and
control solely and
exclusively by the Company.
c.
The Customer undertakes
that no claim or allegation whether arising in contract, bailment, tort
or otherwise shall be made against any servant, agent, or subcontractor
of the Company which imposes or attempts to
impose upon any of them or any means of transportation owned or
chartered by
any of
them any
liability whatsoever
in connection
with the Goods or the Services whether or not arising out
of negligence on the
part of such person. The subcontractor, agent or servant shall also
be entitled to enforce
the foregoing covenant
against the Customer.
d.
If
any such claim or
allegation should
nevertheless be made,
the Customer shall indemnify the Company against all consequences
thereof.
Without
prejudice
to
the
generality
of
the
foregoing
provisions of
this clause,
every exemption,
limitation, condition
and liberty contained
in these
Terms and
Conditions or
in the
Shipping Documentation
and every
right, exemption
from liability,
defense and immunity
of whatsoever
nature applicable
to the
Company or
to which the Company
is entitled hereunder including the right to enforce any jurisdiction
provision contained herein (clause 13) shall also be available and shall
extend to every such subcontractor, agent or servant, who shall be
entitled to enforce the same against the
Customer.
10.
ENTIRE
AGREEMENT
a.
These
Terms and
Conditions, together
with the
Shipping Documentation,
completely and
exclusively state
the agreement
of the Company and
Customer regarding the subject matter hereof and supersede
all prior
negotiations,
representations or
agreements with
respect to
the subject
matter hereof,
written or
oral, and
may be amended
only by
written instruments
signed by
all parties
hereto.
b.
If any part of these Terms
and Conditions is found unenforceable, it will not affect the validity
or enforceability of any other provision hereof.
11.
INTELLECTUAL
PROPERTY
RIGHTS
Any
and
all
intellectual
property
rights
associated
with
the
Website
and
its
contents
(the “Content”)
are the
sole property
of the
Company, its
affiliates or third
parties, as the case may be. The Content is protected by copyright and
other laws in both the
United States and other countries. The
components of the
Website are
also protected
by trade
dress, trade
secret, unfair
competition, and other laws and may not be copied or imitated in whole
or in part.
All custom graphics,
icons, and
other items
that appear on the
Website are trademarks, service marks or trade dress (“Marks”)
of the Company, its affiliates
or other
entities that
have granted
the Company
the right
and license to use
such Marks and may
not be
used or interfered with in any manner without the express written
consent of the Company. User may not copy, reproduce, modify, lease,
loan, sell, create derivative works from, upload, transmit, or
distribute the Intellectual Property of the Website in any way, except
as expressly provided herein, the Company does not grant to any user of
the Website express or implied rights to the Company’s or any third
party’s intellectual property rights.
12.
TERMINATION
The
Company,
at
its
sole
discretion,
may
terminate
or
suspend
the
use
of
the
Website,
Services
and
Content
to
any
person or entity
at
any
time
and
for
any
or
no
reason
in
its
sole
discretion,
even
if
access
and
use
continue
to
be
allowed
to
others.
Upon
such
suspension
or
termination,
Customer
must
immediately
discontinue
use
of
the
Website.
Accessing
the
Website
or
Services
after
such
termination
or
suspension
shall
constitute
an
act
of
trespass.
13.
GOVERNING
LAW
AND
JURISDICTION
a.
The
validity, performance
and construction of
these Terms
and Conditions and
all Shipping Documentation
hereunder shall
be governed and
interpreted in
accordance with
the laws
of the
country where the Company has its principal place of business.
b.
Unless
expressly agreed
otherwise by
the Company,
actions against
the Company shall
be subject
to the
exclusive
jurisdiction of
the Courts
of the place where the Company has his principal place of
business.
c.
Mandatory Law: These Rules
shall only take effect to the extent that
they are not contrary to the mandatory provisions of
international conventions or
national law applicable to the Services.
14.
CONFIDENTIALITY
a.
The Parties agree and acknowledge that
each of the Parties as the
“Receiver” may have access to certain information that is confidential
and proprietary to the other Party as the “Discloser” (the “Confidential
Information”) during the
course of providing the Services. The Receiver covenants
and agrees that
it will not
now or
at any
time hereafter,
either directly or indirectly, for any reason whatsoever:
i.
divulge to any person,
proprietorship, partnership, firm, corporation, organization or entity
of any kind, any or all of the Confidential Information, except as
specifically provided herein;
ii.
reproduce, copy,
photograph, transcribe, or tape any of the Confidential
Information, without the prior
written consent of
the
Discloser;
iii.
use or permit to be used,
any part of the Confidential Information, without the prior written
consent of the Discloser.
b. The
Receiver shall return to the Discloser upon expiration or termination of
this Agreement and at
any other time as requested by the Discloser, any and all originals and
copies of the
Confidential Information in whatever form, including any electronic
files, unless otherwise agreed to
in writing by the Discloser; and shall take all reasonable actions
necessary to protect the
confidentiality of the Confidential Information.
c.
This Agreement does
not apply to any Confidential Information that
was:
15.
PRIVACY
i.
in
the public
domain at
the time
of
disclosure;
ii.
disclosed
through no
fault of
the Receiver
and becomes generally
available to a third party;
iii.
lawfully in the
possession of the Receiver
prior to
the disclosure;
or
iv.
required to
be disclosed by order of a court or tribunal of competent
jurisdiction or
otherwise required
by law.
A.
To the extent Company and/or Customer process
personal information, each
of Company
and Customer
shall comply
with all
applicable Canadian federal and provincial
laws governing the
processing of personal information (“Data Protection Laws”). Personal
Information will be processed
by Company
in accordance
with the
Privacy Policy
that can be found at
https://Sway 4 Way.com/legal/Sway 4 Way-privacy-policy.pdf.
Customer and
Company shall
further comply
with all
applicable industry
standards concerning
privacy, data
protection,
confidentiality or information security.
B. Any processing of Personal Information shall be limited to
what is necessary to provide the Services or such other purposes
expressly authorized by Company. Customer hereby authorizes the Company
to appoint sub-contractors to process Customer's Personal Information on
its behalf.
16.
GENERAL
Customer
may
not
assign
any
of
its
interest,
rights
or
obligations
pursuant to
these
Terms
and
Conditions;
If
any
provision
of
these
Terms
and
Conditions
is
found
to
be
invalid
by
any
court
having
competent
jurisdiction,
the
invalidity
of
such
provision
shall
not
affect
the
validity
of
the
remaining provisions
of
these
Terms
and
Conditions,
which
shall
remain
in
full
force
and
effect.
No
waiver
of
any
of
these
Terms
and
Conditions
shall
be
deemed
a
further
or
continuing
waiver
of
such
term
or
condition
or
any
other
term.
The parties have
duly executed this Agreement by their authorized representatives as of the date
and year set forth on the first page of this Agreement.
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