Worldwide Duties Paid Shipping Transaction Platform Service Agreement | Yakit

Worldwide Duties Paid Shipping Transaction Platform Service Agreement

This Worldwide Duties Paid Shipping Transaction Platform Service Agreement (the “Agreement”) is made and entered into as of the Date in the Signature block (the “Effective Date”) by and between Yakit, Inc. (“Company”), a Delaware corporation having its principal place of business at 440 N. Wolfe Road, Sunnyvale, CA 94085, and Customer specified in Signature block below (“Customer”), a corporation having its principal place of business at address specified in Signature block below.

Company accepts goods for carriage and provides services subject to these standard terms and conditions set out below (these “Conditions”). 

1.  Definitions

Confidential Information” means non-public information of either party that is disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that the Receiving Party knows or reasonably should know is confidential to the Disclosing Party.  The Disclosing Party will use reasonable efforts to either indicate that such information is confidential at the time of disclosure or mark such information “Confidential,” “Proprietary,” or with a similar designation.  Confidential Information also includes all summaries or abstracts of Confidential Information.  Notwithstanding the foregoing, Confidential Information of Customer will include the Customer Data, and the content and capabilities of the Software and the Hosting Services is the Confidential Information of Company.  The terms of this Agreement shall be the Confidential Information of both parties.

Customer” means the person, firm, company, or other entity that enters into a contract of carriage (“Carriage”) or other services with Yakit.

Customer Data” means any data, information, and other materials generated by the Users’ use of Software and that is received and stored by Company under this Agreement.

Hosting Services” means the worldwide shipping platform hosting services provided by Company to Customer under this Agreement for the Software, as further described herein.

Intellectual Property Rights” mean copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.

Software” means the Company proprietary software, in object code form only, identified or described on Exhibit B.

Support” means the maintenance and technical support services described on Exhibit D for the Software and System.

System” means the computer hardware and software (including, without limitation, the Software and other software applications, software interfaces, operating system and databases), data storage, and all other resources (including, without limitation, telecommunications equipment) used by Company to make Software and Customer Data available to, and usable by, Customer via the Internet.

Users” means Customer’s (and its shipper’s or merchant’s) employees, contractors, and agents.

Contract” means this document, which is the contract of carriage or other services between the Customer and Yakit and which shall be deemed to incorporate these Conditions; 

Shipment Group” means, collectively, all Shipments sent at the same time to the same country of destination by or for the same Customer; 

Container” means any box, pallet, or other receptacle which physically stores Shipments from the same Customer. A Shipment Group can consist of one or more Containers.

Shipments” means any shipment/package which the Customer requests that Yakit shall transport and which, in any case, must weigh less than 30kg; 

Prohibited items” listed in Appendix A of this document cannot be transported by Yakit and its Partners.

Restricted items” listed in Appendix B of this document may be transported by Yakit and its Partners but require additional information from the Merchant.

Taxes and Duties” means all taxes, charges, imposts, customs duties, levies, and other fees or charges of any kind payable to any governmental, fiscal or taxing authority anywhere in the world (but excluding any taxes in relation to Yakit’s income); 

TLC” means total landed cost, including 1st mile pickup cost (where applicable), line haul cost, customs clearance cost, duties & taxes (where applicable), last mile delivery cost, and Yakit service fee as well as any cost related to the previously listed cost.

VDN” means virtual delivery network, which is the Yakit system to be used by the Customer for the preparing of his Shipments, Containers, and Shipment Groups.

Third Parties”, “Yakit Partner”, or “Partner” have the meaning set out in Condition 4.2; 

Transit” has the meaning set out in Condition 7;

Dispatching” means indicating to Yakit VDN that the shipments and Job are ready for pickup by first mile delivery partner.

DDP” means Delivery Duties Paid, a service where Duties and Taxes are paid by the merchant or his assignees including Yakit and Yakit Partners.

2.  Yakit Services and Service Levels.

2.1  Delivery Services. Yakit is not a common carrier in the sense of taking possession of the Shipments from the Merchant, but delegates its partners (Yakit Partners) who are common carriers and who shall take possession of the shipments.  Yakit and Yakit Partners shall only accept Shipments and Shipment Groups and provide services in accordance with these Conditions. The Customer is responsible for ensuring that Shipment Groups are of the type that will be carried by Yakit and that such Shipment Groups are adequately and securely packed and the contents are properly and clearly identified. The Customer’s attention is particularly drawn to Condition 5 regarding Yakit’s refusal to carry certain items.

These Conditions will apply from the moment that Yakit accepts an order for carriage of goods and/or the provision of services, and the placing of an order with Yakit or otherwise requesting the carriage of goods and/or the provision of services shall be considered to be acceptance of these Conditions. 

2.2  Hosting Services.  Company agrees to provide Hosting for its Delivery Service, commencing on or about the Effective Date, for Customer.

2.3  Service Levels.  Company agrees to provide the Hosting Services according to the service level standards specified on Exhibit C (the “Service Level Agreement”).

3.  Software.  Subject to the terms and conditions of this Agreement, Company grants to Customer, for use by Customer and its Users, a non-exclusive right and license to access and use the Software via the Internet solely for Customer’s own business purposes.  Users will access the Software by means of a specific account (the “Customer Account”) and Passwords (as hereinafter defined) provided by Company.  The Software will be made available to Customer online at www.yakit.com (or such other URL as Company may designate in writing from time to time).

4.  Passwords.  Company will issue to Customer, or will authorize Customer to issue, a password (each, a “Password”) for each User authorized to access the Software using Customer’s Account.  Customer is solely responsible for the confidentiality and use of its Passwords and the Customer Account and all charges incurred from use of the Software accessed with the Passwords.  In no event will Company be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer Account by obtaining a Password caused by a negligent or intentional act, error, or omission of Customer.

5.  Customer Responsibilities. Customer will not, directly or indirectly, do any of the following acts: (i) reverse engineer, de-compile, disassemble, or otherwise attempt to discover the source code form of the Software; (ii) modify, translate, or create derivative works based on the Software; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit Software or make the Software available to a third party other than as contemplated in this Agreement; (iv) use the Software for timesharing or service bureau purposes; (v) publish or disclose to third parties any evaluation of the Software or Hosting Services without Company’s prior written consent; (vi) create any link to, or frame or mirror any content contained or accessible from, the Software; (vii) violate any acceptable use policy required by Company’s Internet service providers or third party hosting facilities, provided that copies of such policies have been furnished to Customer in advance in writing; (viii) violate any local, state, federal, or foreign law, treaty, regulation, or convention applicable to Customer in connection with its Users’ use of the Software; (ix) willfully tamper with the security of any of the Systems or tamper with other customer accounts of Company; (x) access data on the System not intended for Customer; (xi) log into a server or account on the System that Customer is not authorized to access, (xii) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; or (xiii) willfully render any part of the Systems unusable.

Customer responsibilities with respect to tendering goods for Yakit Delivery services are outlined in the Terms and Conditions section in Exhibit A.

6.  Confidentiality.

6.1  Obligations.  Each party acknowledges that, in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party.  The Receiving Party will, both during and after the term of this Agreement, keep in confidence all of the Disclosing Party’s Confidential Information it receives.  The Receiving Party will not use the Confidential Information of the Disclosing Party other than as necessary to perform its obligations or exercise its rights under this Agreement.  The Receiving Party will take all reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons.  The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with the Receiving Party under terms sufficient to enable the Disclosing Party to comply with its confidentiality obligations under this Agreement.  The Receiving Party will immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information.  The Receiving Party agrees to assist the Disclosing Party in remedying such unauthorized use or disclosure of its Confidential Information.

6.2  Exceptions.  Confidential Information will not include information that (a) is already known to the Receiving Party at the time of disclosure, which knowledge the Receiving Party will have the burden of proving; (b) is or, through no act or failure to act of the Receiving Party, becomes publicly known; (c) is received by the Receiving Party from a third party without restriction on disclosure; (d) is independently developed by the Receiving Party without reference to, or use of, the Confidential Information of the Disclosing Party, which independent development the Receiving Party will have the burden of proving; or (e) is approved for release by written authorization of the Disclosing Party.

6.3  Legal Disclosures.  A disclosure of Confidential Information (a) in response to a valid order by a court or other governmental body, or (b) otherwise required by law, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the party disclosing such information will provide prompt written notice thereof to the other party to enable it to seek a protective order or otherwise prevent such disclosure.

6.4  Other Permitted Disclosures.  A party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to (i) potential acquirers, merger partners, investors and their personnel, attorneys, auditors, and investment bankers, solely in connection with the due diligence review of such party by persons and provided that such disclosures are made pursuant to a confidentiality obligation, (ii) the party’s outside accounting firm, and (iii) the party’s outside legal counsel.

7.  Fees and Taxes.

7.1  Fees.  Customer will pay to Company the fees specified on Exhibit A (collectively, “Fees”).  Any monthly Fees will be prorated for any partial months.

7.2  Invoicing and Payment; Past Due Payments.  Fees will be invoiced in accordance with Exhibit A.

7.3  Taxes.  Customer will be responsible for all sales, use, value added, or other taxes of any kind.  Yakit charges customer only for freight and customs duties and import taxes associated with shipments consigned to Yakit or its partners.

7.4  Expenses.  Customer is responsible for all its Internet connection charges, calling activities, and phone bills related to its use of the Software.

8.  Ownership.

8.1  Ownership of Customer Data; Limited License to Company.  Customer retains all right, title and interest, including all Intellectual Property Rights, in and to all Customer Data.  Customer hereby grants to Company a limited, royalty-free, and non-exclusive license, with the right to sublicense solely to Company’s third party shippers and their intermediaries, contractors, and service providers who are performing services for Company hereunder and have a need to access and use such Customer Data, to use, reproduce, display, perform and transmit Customer Data in connection with providing the Hosting Services and Support to Customer and the shippers and other intermediaries under this Agreement.

8.2  Ownership of Software and Systems.  Company retains all right, title, and interest, including all Intellectual Property Rights, in and to all Software (including, without limitation, all modifications, changes, enhancements, or additions thereto) and the Systems.

9.  Term and Termination.

9.1  Term.  This Agreement will commence on the Effective Date and remain in effect for one year, unless terminated sooner as provided herein (“Initial Term”).  Following the end of the Initial Term, this Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless either party has given written notice of its intent not to renew this Agreement at least 30 days prior to the end of the then-current term.  The Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term.”

9.2  Termination for Cause.  Either party may terminate this Agreement (i) if the other party files a petition for bankruptcy or is adjudicated bankrupt; (ii) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within thirty (30) days of the filing date; (iii) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; (iv) if a receiver is appointed for the other party or its business; or (v) upon the occurrence of a material breach of a material provision of this Agreement by the other party, if such breach is not cured within thirty (30) days after written notice is received by the breaching party identifying the matter constituting the material breach.

9.3  Termination for Convenience.  Either party may terminate this Agreement for convenience for any reason at any time upon 30 days’ prior written notice.

9.4  Events on Termination.  Upon termination of this Agreement:  (a) each party will promptly return all Confidential Information of the other party in its possession, custody, or control to the other party, (b) Customer will pay in full all Fees then due, and (c) Company will make a copy of the Customer Data available to Customer in a mutually agreed manner and form.  Notwithstanding the above, each party may retain a copy of this Agreement and such other Confidential Information of the other party as reasonably required for legal and auditing purposes.

9.5  Survival.  The definitions and the rights, duties, and obligations of the parties that by their nature continue and survive will survive any termination of this Agreement.

10.  Access.  Company will have the right to access the Customer Account from time to time, for purposes of providing Support, arranging for the execution of shipping and related logistics, Customer account administration, invoicing Fees, and inspecting Customer’s utilization of the Software so as to ensure Customer’s compliance with the provisions of this Agreement.

11.  Limited Warranties and Disclaimers.

11.1  General Warranties.  Each party hereby represents and warrants to the other that:  (a) it has all right, power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby; and (b) this Agreement has been duly authorized, executed, and delivered by such party, constitutes the legal, valid, and binding obligation of such party, and is enforceable against such party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency, or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity).

11.2  Functionality Warranty.  Company warrants to Customer that the Software will operate in substantial conformity with its applicable published user documentation.  For any breach of this warranty, Customer’s sole and exclusive remedy and Company’s sole and excusive liability, will be for Company to correct promptly any reported failure in the Software causing a breach of this warranty.  Company warrants to Customer that it will provide the Hosting Services in conformance with the Service Level Agreement.  The sole remedy for any breach of the Service Level Agreement shall be as set forth on Exhibit A.

11.3  Exclusions:  Except as expressly warranted in this Section 11, no warranties (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) are made under this Agreement.  EACH PARTY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, AND PARTICULAR AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS UNDER THE UNIFORM COMMERCIAL CODE.  Company does not warrant that the functions contained in the Software will meet Customer’s needs or requirements, or that the operation of the Software or provision of the Hosting Services will be uninterrupted or error-free, or that all errors will be corrected.

11.4  Limitation of Liability.

(a) Waiver of Consequential Damages.  EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE, UNDER ANY THEORY, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE, OR IMPAIRMENT OF OTHER ASSETS, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

(b) Cap on Liability.  EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6 AND FOR CUSTOMER’S EXPRESS PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY BY CUSTOMER HEREUNDER, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

(c) Allocation of Risk.  The sections on limitation of liability and warranty disclaimer allocate the risks in the Agreement between the parties.  This allocation is an essential element of the basis of the bargain between the parties.  Company provides no indemnity in connection with this Agreement.

12.  Feedback. Customer shall inform Company of all errors, bugs, and other problems encountered using the Software and System, and of all ideas for improvements and enhancements (“Feedback”), and hereby assigns to Company all right, title, and interest to the Feedback, including all related intellectual property rights.

13.  General Provisions.

13.1  Relationship of Parties.  The parties to this Agreement are independent contractors.  There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties.  Neither party has the authority to bind the other or to incur any obligation on its behalf.  Neither party will have, and will not represent that it has, any power, right, or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name.

13.2  Assignment.  Neither party will indirectly or directly assign its rights under this Agreement, in whole or part, without the prior written consent of the other party.  Notwithstanding the foregoing, a party may, without the prior written consent of the other party, transfer or assign its rights under this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party’s obligations hereunder. Any assignments contrary to this Section 13.2 will be null, void, and of no effect.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

13.3  Construction of Agreement.  This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof will not be construed for or against any party.  The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this Agreement, which will be considered as a whole.

13.4  Governing Law.  This Agreement will be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents.

13.5  Waiver and Amendment.  No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.  This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both parties.

13.6  Force Majeure.  Except for the payment of money, neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party.  Such causes include, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, or other weather, unavailability of necessary utilities or raw materials, power outage, strike, lockout, unavailability of components, activities of a combination of workmen or other labor difficulties, war, act of terrorism, insurrection, riot, act of God or the public enemy, law, act, order, export control regulation, proclamation decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement).  If, however, a party’s performance is prevented for ninety (90) days or more, then the other party will be entitled to terminate this Agreement on written notice to the party suffering the force majeure at any time prior to resumption of performance by the party suffering the force majeure.

13.7  Non-Exclusive Relationship.  This Agreement is non-exclusive.  Each party will be free to enter into other similar agreements or arrangements with other third parties.

13.8  Entire Agreement.  This Agreement, and the Exhibits attached hereto, constitutes the entire agreement between the parties and supersedes all previous and contemporaneous agreements, understandings, and arrangements with respect to the subject matter hereof, whether oral or written.

13.9  Press Release.  In the event that Company plans to issue a press release announcing the existence of the relationship between the parties and the nature of this Agreement, Company will provide the press release to Customer for Customer’s written approval and consent. Such approval and consent shall be in Customer’s sole discretion.  No other press releases that mention the other party shall be issued without the other party’s prior written approval.

13.10  Severability.  If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, and all other provisions of this Agreement will remain in full force and effect.

 

Exhibit A

1.  Introduction

1.1  Yakit, Inc., a company incorporated in Delaware and having its registered office at 440 N Wolfe Rd, Sunnyvale, CA 94085 USA (“Yakit”) accepts goods for carriage and provides services subject to these standard terms and conditions set out below (these “Conditions”). 

1.2  Yakit is not a common carrier in the sense of taking possession of Shipments from the Merchant, but delegates its partners (Yakit Partners) who are common carriers and who shall take possession of the Shipments.  Yakit and Yakit Partners shall only accept Shipments and Shipment Groups and provide services in accordance with these Conditions. The Customer is responsible for ensuring that Shipment Groups are of the type that will be carried by Yakit and that such Shipment Groups are adequately and securely packed and the contents are properly and clearly identified. The Customer’s attention is particularly drawn to Condition 4 regarding Yakit’s refusal to carry certain items.

1.3  These Conditions will apply from the moment that Yakit accepts an order for carriage of goods and/or the provision of services, and the placing of an order with Yakit or otherwise requesting the carriage of goods and/or the provision of services shall be considered to be acceptance of these Conditions. 

1.4  Subject to the following, these Conditions shall apply to all goods carried and services provided by Yakit to the exclusion of all other terms and conditions, including, but not limited to, those which may be purported to apply under any purchase order, receipt, confirmation, or similar document. 

1.5  No agent or employee of Yakit is permitted to alter or vary these Conditions in any way unless he is expressly authorized to do so by an Executive Director of Yakit. In such circumstances, any alteration or variation shall only be effective when it is in writing and signed. 

2.  General

2.1  Yakit agrees, subject to the Customer’s observance at all times of these Conditions, to arrange for the transport of Shipment Groups agreed upon by Yakit and the Customer, or to provide other services as agreed upon by Yakit and the Customer (as applicable). Unless Yakit and Customer agree otherwise, Yakit services will not exceed arranging for the delivery of Customer’s Shipment Groups.

2.2  These Conditions shall apply to any agreement between Yakit and the Customer relating to carriage or the provision of other services and the Customer shall be deemed to have notice of these Conditions if and as soon as he places an order with, or accepts a tender from, Yakit for the carriage of goods or other services. 

2.3  Yakit reserves the right to update these Conditions from time to time and inform the Customer of these updates ten (10) calendar days before the updates take effect. However, the updates to these Conditions will not affect the terms and conditions of any Shipments or Shipment Groups tendered by Customer for Carriage before the updates take effect.

2.4  Yakit reserves the right for its partners (Yakit Partners) to inspect all Shipment Groups to assess their compatibility with these Conditions and ensure that they can be shipped legally and in accordance with Yakit’s standard procedures.

2.5  Customer shall be signed up to be a “Known Shipper” per US Transportation Safety Administration (TSA) or equivalent of such law in the country of shipment if it exists.  If the Customer is not approved in the TSA “Known Shipper Database” or equivalent system in the country of shipment (if one exists), as determined by Yakit, then Yakit reserves the right, at its discretion, to reject all Customer Shipments.  Any shipment fees paid for the rejected Shipments shall be refunded by Yakit.

2.6  Customer agrees to provide Yakit with documents related to the export and shipping of its products via common carriers.  These documents include, but are not restricted to, the following for each country where the Customer may be tendering goods for Yakit Delivery:

  1. USA:  Shipper Consent as required by the Transportation Security Administration
  2. India:  Import Export Code (IEC) document, Authorized Dealer Code document, Know Your Customer (KYC) documents, Authorization to Provide Export Processing Services.
  3. Hong Kong: Known Consignor consent document

Customer also agrees to permit Yakit to share the above-mentioned documents with Yakit Partners as defined in Condition 4.2.

3.  Parties and Sub-Contracting

3.1  If Customer is not the owner of some or all of the goods in a Shipment Group/Shipment, he shall act with the full consent of the owner(s).  To this end, Customer warrants that he possesses the requisite authorizations and licenses to allow Yakit and its Partners to handle and transport Shipments.

3.2  Yakit may engage a third party (henceforth called Yakit Partner or simply Partner) in order to carry out or complete any of Yakit’s responsibilities as determined by the Contract.  Similarly, these third parties shall have the ability to sub-contract their own responsibilities. However, Yakit shall remain responsible for any acts or omissions of its Partners which are contrary to these Conditions, subject always to Conditions 9 and 10. 

4.  Unacceptable Goods

4.1  Subject to Condition 4.2, Yakit will not accept for carriage any of the Prohibited Items listed in Exhibit F.

4.2  Yakit will permit Customer to include Restricted Items in a Shipment Group only if a designated Yakit executive has communicated to Customer in writing, including messaging via the Yakit Y-Messaging interface, that these Restricted Items are permissible for shipment in that specific Shipment Group. Exhibit G contains a list of Restricted Items.

5.  Customer Obligations and Warranty

5.1 Yakit sets up first mile pickup of Customer's shipments.  Customer agrees to use Yakit provided carrier reasonable access to its facilities to pickup the Shipment Group.

5.2  The Customer assumes responsibility for loading the Shipment Group onto the first mile delivery partner’s vehicle at the designated pickup location.  Yakit will not be obligated to accept the Shipment Group for carriage if Customer fails to fulfill this requirement.  Yakit may elect to assist Customer by accepting the Shipment Group for carriage; however, in this event Customer will assume liability for, and indemnify Yakit against, any damage or loss that may result from Customer’s failure to load the Shipment Group.

5.3  The Customer attests and warrants that:

5.3.1  any and all goods within Shipment Groups have been correctly and adequately packaged;

5.3.2  Customer shall use the Yakit APIs or the Yakit GUI to add Shipments and to download the Shipment and Container labels.  Customer shall affix Yakit Shipment Labels to each Shipment and Yakit Container labels provided to each Container.  All Shipments and Containers must be labeled with the labels provided by Yakit’s VDN, supplemented by the requisite dispatch documentation as specified by Yakit or Yakit’s VDN;

5.3.3  the weight of any individual Shipment shall not exceed 30 kg;

5.3.4  Customer will not attempt to ship Restricted Items using Yakit services unless allowable under Condition 4.2;

5.3.5  Customer will provide accurate data on all Shipments, Containers, and Shipment Groups such as product descriptions, product values, shipment content, shipment weight and dimensions, container weight, and container dimensions. Yakit uses cross checks to verify the entered data. If such cross checks show any discrepancy in the data that resulted in too-low shipping cost calculation, Yakit shall be entitled to charge the Customer on the next merchant invoice the difference between reported and effective weights, adding a 20% surcharge; and

5.3.6  Customer will accurately complete all documentation and comply with all customs requirements as required to enable Yakit to support all steps along the delivery of the Shipment Groups/Shipments.

5.4  Customer agrees and confirms that since Yakit provides DDP service it shall pay all duties and taxes applicable to a Shipment on behalf of the Customer on the sole basis that in doing so it is acting as the Customer’s fully authorized agent.

5.5  The Customer warrants that he has authorization from his consumer (buyer of the goods) to execute DDP import. The Customer hereby passes over this authority to Yakit and the Yakit Partners in order to execute DDP import.

6.  Transit, Unclaimed Goods, and Undelivered Goods

6.1  Yakit will be responsible and liable only for Shipment Groups/Shipments while they are in “Transit”. Under these Conditions, Transit will:

6.1.1  commence when Yakit or its partners physically possess the Shipment group, whether at the point of collection or at Yakit Partner’s premises; and 

6.1.2  end (unless otherwise previously determined) when the Shipment is offered for delivery at the address specified on the Shipment;

6.2  provided that when, for any reason, a Shipment is held by Yakit “to be kept until called for,” “to await order,” or under similar instructions, and these instructions are not received, or the Shipment/Shipment Group fails to be removed or called for in a reasonable time, Transit will effectively end. Yakit will store such Shipments/Shipment Groups solely at the Customer’s risk and may dispose of them in accordance with Condition 14. A Shipment/Shipment Group will be considered to have been offered for delivery if Yakit (or its designated Partner) attempts delivery to the specified address in a manner customary within the location of delivery.  For example, if it is customary in the location of delivery to leave a Shipment outside of premises in the event that a physical handover is impossible, leaving the item will be considered to be delivery; at this time, Transit will end.

6.3  Yakit may convey goods by any route and via any mode of conveyance.

6.4  If Yakit is unable to convey the Shipment to the address to which it is consigned, or to deliver at said address: 

6.4.1  Yakit will attempt to contact Customer and obtain an alternative address within the same country as the original address; and

6.4.2  if, following this, Yakit is unable to contact Customer or obtain an alternative address within a reasonable time, Yakit will deal with the goods subject to Condition 12. Prior to any resultant destruction or disposal, the goods will be held at Customer’s sole risk.

7.  Liability For Loss and Damage

7.1  Yakit, in accordance with this Condition and Conditions 5, 8, 9, and 11, shall not be liable for physical damage to or loss of Shipments/Shipment Groups if this loss or damage arises from:

7.1.1  Customer or consignee failing to accept delivery within a reasonable time; 

7.1.2  inadequate or inappropriate packaging, addressing, or labeling (including incorrect or absent postcode); 

7.1.3  any violation of Customer’s warranties as delineated in Condition 5; 

7.1.4  breakage or damage of articles comprised of porcelain, earthenware, china, glass, or any comparable materials, unless Customer has adequately packaged and correctly declared the specific Shipment’s contents; 

7.1.5  damage to, or caused by, liquids in Shipments/Shipment Groups, unless Customer has adequately packaged and correctly declared the specific Shipment’s/Shipment Group’s contents; 

7.1.6  any other omission or action by the Customer, owner of the goods, or either’s employees, associates, or agents; 

7.1.7  inherent liability to wastage in bulk or weight, latent defect or inherent defect, vice or natural deterioration of the goods, wear and tear, depreciation, moths, vermin, or the effect of any process of cleaning, dyeing or restoring any article; and

7.1.8  legal seizure of goods or refusal to permit goods to clear Customs. 

7.2  In addition, Yakit will not be liable for a Shipment/Shipment Group or the included goods:

7.2.1  where the Customer, owner of the goods, or either’s employees, associates, or agents has committed fraud; and/or 

7.2.2  when the Shipment/Shipment Group is not in Transit. 

7.3  The Customer warrants that he provides correct information and description of the content of each Shipment. If the Customer breaches this warranty, Yakit shall be entitled to pass to the Customer any charges or fines that may be levied by the authorities or third parties due to this circumstance.

8.  Limitation and Exclusion of Liability

8.1  Each Shipment tendered by Customer to the Yakit VDN is insured by Yakit for the lower of US $2000 or the value given in the Customer data including, but not limited to, the Manifest or the Y-Ship API entries.

8.2  For any lost Shipments, Yakit’s only compensation to the Customer is the lower of US $2000 or the value of the Shipment plus the collected Duties and Taxes and shipment fees.

8.3  Yakit shall not be liable to Customer for: 

8.3.1  any indirect or consequential loss or damage (e.g. loss of business or goodwill), or 

8.3.2  for any loss of: profits, business, contracts, savings, goodwill, revenue, or any wasted expenditure.

9.  Claims For Compensation

9.1  The Customer must inform Yakit of any loss of, or damage to, a Shipment/Shipment Group tendered to Yakit; the resulting claim must be made no more than 14 days after Transit commences, and it must be confirmed in writing no more than 28 days after Transit commences. If Customer fails to do this, Yakit will not be liable for any loss or damage unless Customer demonstrates that: 

9.1.1  it was not possible for Customer to notify Yakit or make a claim in writing within the time limit.

9.2  If Customer makes a claim for damage, he must ensure that the Shipment Group/Shipment and its packaging is available for inspection by Yakit.

10.  Customer Indemnity

10.1  The Customer will indemnify Yakit against: 

10.1.1  losses suffered by Yakit resulting from any negligent act, omission, misdirection, or misstatement by the Customer, consignor, consignee, or either’s employees, associates, or agents; 

10.1.2  any demands or claims for damage or loss arising from the carriage of Prohibited Items;

10.1.3  any demands or claims for damage or loss made by Customer, and/or any third party, in excess of Yakit’s limits of liability as delineated in these Conditions; 

10.1.4  any penalties imposed against or sums payable by Yakit to any governmental or regulatory authority or agency as a result of delivering or carrying the Shipment/Shipment Groups; and 

10.1.5  any demands or claims made by a third party attributable to Customer’s lack of authority to enter into the Contract under these Conditions. 

11.  Rights of Third Parties

11.1  The Customer agrees that the provisions of Conditions 3, 5, 7, 8, 9, and 10 will extend to protect the members of Yakit and their employees, agents, and partners (collectively, “Third Parties”). As a result, any reference to “Yakit” in Conditions 3, 5, 7, 8, or 9 shall also be considered a reference to these Third Parties.

12.  Lien and Disposal of Goods

12.1  Yakit will have a lien on all of Customer’s goods for any amount due to Yakit in accordance with these Conditions or otherwise. 

12.2  If the amount owed to Yakit, for which it has a lien as detailed in Condition 12.1, is not resolved within a reasonable period following the commencement of Transit, then Yakit shall be at full liberty to: 

12.2.1  sell the goods privately or at auction and to apply the proceeds of any such sale towards any amount owed to it as well as the expense of the sale, and account to Customer for the remaining balance (if any); or 

12.2.2  destroy the relevant goods provided that any sale under sub-Condition 12.2.1 is, in Yakit’s opinion, impractical as a result of the saleability of the goods in question; such sale or destruction will constitute a full discharge of Yakit’s liability with respect to the goods. Customer will indemnify Yakit against any claims made by third parties that arise from Yakit’s exercise of its stated rights in Condition 12. 

 

Exhibit B

Software and Fees

1.  Software

Company’s worldwide shipping platform, which allows for:

  •  transactions for worldwide shipping
  •  company-selected carriers to transport the goods that shippers send via the Company’s system

2.  Fees

  • Yakit does not charge any activation or set up fees for use of its software platform.
  • Yakit does not have any monthly service fees for use of its software platform.
  • Support: Included
  • Shipping Transaction fees: Please see Exhibit C.

 

Exhibit C

Shipping Transaction Fees

1.  Cost Calculation and Payment

1.1  The Yakit VDN calculates the entire TLC (Total Landed Cost) based on the shipment data entered by the Customer and instantly creates a merchant Invoice for the Customer with this cost.  The Yakit Invoice is binding if the Customer decides to dispatch the Job.  If the Customer does not agree with the Invoice, the Customer should contact Yakit Admin via the Y-Chat interface to get clarification before dispatching the Job.

1.2  The Customer shall pay the calculated TLC prior to Dispatch. The amount due can be paid immediately by the Customer using PayPal or ACH (wire) payment system, or it may be charged against the Customer’s credit account maintained by Yakit.

1.3  Credit account is granted by Yakit for the Customer solely in Yakit’s discretion.  This is based on several factors including, but not restricted to, Customer’s credit history, payment history with Yakit, and creditworthiness.

1.4  The Credit Account, if granted by Yakit, shall require an authorized, legally binding Customer Purchase Order agreeing to pay Yakit for services provided within the credit limit.

1.5  The Credit account, if granted by Yakit, shall work as follows:

  • Customer Jobs shall be automatically approved by the VDN if the Job Invoice is less than or equal to the amount of Credit available in the Credit Account.
  • If the Job Invoice exceeds the amount of Credit available in the Credit Account, it shall be rejected.
  • Customer can make payments to Yakit for past Jobs by using PayPal or ACH (wire) payment system or by physical check.  In all payment methods, the Customer shall indicate the job numbers the Customer is paying for.
  • Yakit will adjust the Customer’s Yakit Credit account only after receiving the payment amount in its bank account.  For physical checks this could take 5 days or more.
  • The Customer’s Credit account balance notwithstanding, Yakit Jobs are payable on 7-calendar-day terms.  Each Job becomes delinquent 10 calendar days after shipping.  If there are any delinquent Jobs, the Customer will not be able to Dispatch a new Job.

1.6  Yakit shall be entitled at any time to increase Yakit’s charges for carriage or other services by giving to the Customer, not less than 7 days prior, written notice to accord with increases in relevant costs of Yakit’s business such as, but not limited to, fuel, license fees, and labor. This section notwithstanding, if the Customer does not agree with the Invoice generated by the VDN for a Job, the Customer is under no obligation to ship via Yakit.
 

Exhibit D

Support and Maintenance

E-mail and telephone-based help desk support is available to one registered single Customer point of contact from 9 am to 5 pm Pacific Time, Monday to Friday, excluding Company holidays.  Customer agrees to send all questions to the e-mail based help desk (email: support@yakit.com; or such other telephone number or e-mail address as Company may furnish to Customer from time to time).  Company agrees to promptly reply to, and address, requests for support. Support will be provided primarily by email; phone and web conference support may be provided.

Customer acknowledges that Company will schedule a system maintenance period every Sunday beginning at 11:00 pm Pacific Time and lasting one (1) hour.  Company may occasionally have to interrupt services outside of this time period, including for purposes of upgrades and maintenance to the Software and/or System, in which case Company will use all reasonable efforts to announce the scheduled downtime via e-mail to Customer’s designated e-mail address one (1) business day in advance.

The Support provided under this Agreement does not include services for the following:

(i) any problem resulting from the misuse, improper use, alteration, or damage of the Software;

(ii) any problem caused by modifications in any version of the Software not made or authorized by Company;

(iii) any problem resulting from Customer combining or merging the Software with any hardware or software not supplied by Company or not identified by Company as compatible with the Software or Systems; or

(iv) any problem that is not reproducible by Company.

 

Exhibit E

Service Level Standards

1.  Definitions

Force Majeure Event” means (i) compliance with any act, order, demand, or request of any government or governmental authority, agency, or instrumentality; (ii) hurricane, earthquake, flood and other natural disasters or fires; (iv) war, rebellion, act of terrorism, or civil disorder; (v) act or omission of any telecommunication or services provider; (vi) any other cause beyond Company’s reasonable control.

Maintenance Outage” means a planned or unplanned maintenance period, including, without limitation, any maintenance downtime or maintenance outage, not to exceed an aggregate of ten (10) hours in any calendar month.

Service” means the service provided by Company to host, manage and make available through the Internet the Software.

Service Outage” means any time when the Service is inoperable or unavailable due to or caused by reasons reasonably within Company’s control, excluding specifically the following reasons:  (i) Customer’s own telecommunications or Internet service providers; (ii) a Force Majeure Event; (iii) any systemic Internet failures; or (iv) any failure in Customer’s own hardware, software, or network connection.

Total Hours of Operation” shall be twenty-four (24) hours per day, three hundred sixty-five (365) days per year, excluding any time for Maintenance Outages.

2.  Availability of Services

Company warrants that the Services will be available at least 97% of the time measured monthly, using the following formula:

Uptime = Total Hours of Operation minus Service Outages

                           Total Hours of Operation

3.  Sole Remedies for Failure to Meet the Uptime Service Level Commitment

For each calendar month in which Company has Uptime of:

(a) less than 97% but above 95%, Company shall, upon Customer’s request made within thirty (30) days of the end of that calendar month, provide Customer with a written plan for improving Company’s Uptime to attain the 97% Uptime and Company shall promptly implement such plan;

(b) between 95% and 90%, Company shall, upon Customer’s request made within thirty (30) days of the end of that calendar month, provide Customer with a service credit in an amount equal to $50 and the action plan under subpart (a) above; or

(c) less than 90%, Company shall, upon Customer’s request made within thirty (30) days of the end of that calendar month, provide Customer with a service credit in an amount equal to $100 and the action plan under subpart (a) above.  Customer may also terminate this Agreement upon thirty (30) days’ written notice (which notice must be given within sixty (60) days of the end of the calendar month in which the Uptime was less than 90%).

Customer shall not exercise the rights in this Section 3 without a reasonable basis or belief that the applicable Uptime commitment was not satisfied.  If Customer believes that Company has failed to achieve an Uptime commitment in any given month, Company shall, following Customer’s request, promptly provide a report that contains true and correct information detailing Company’s actual Uptime performance.  THIS SECTION 3 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S ENTIRE LIABILITY, FOR ANY FAILURE TO MEET THE UPTIME COMMITMENT.

4.  Maintenance Outages

Company will provide Customer with written notification via e-mail for each planned Maintenance Outage at least one (1) business day in advance, whenever practicable, of the occurrence of any such outage.

5.  Customer Contact Information

Customer’s designated contacts for Maintenance Outage and Service Outage notifications shall be provided to Yakit Support via email to: support@yakit.com.

 

Exhibit F

Prohibited Items

The following items are prohibited and cannot be included in any shipment submitted to Yakit:

Prohibited Items

 

Animals, fish, birds (live)

Human remains or ashes

Banderols/tax stickers

Bullion (of any precious metal)

Illegal goods

“Cash-like” negotiable instruments in bearer form

Imitation firearms, weapons, explosive devices, or ammunition

Complete firearms, ammunition, explosives and weapons

 

 

Exhibit G

Restricted Items

The following items are restricted and can be included in a shipment submitted to Yakit only if the corresponding requirements are met in full.  If you wish to ship such items, please contact our support at: support@yakit.com

Restricted Items

 

Firearms parts

Medical samples

Furs and ivory

Negotiable instruments in bearer form

Insects, larvae and pupae, etc

Tobacco

Items that could be used as weapons

Watches and costume jewelry

Jewelry and objects constructed of precious metal and/or stones

Wine, beer, other spirits

Lithium batteries

Perfume or cologne

Loose precious stones

 

 

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