1.1 Account Creation. You are required to open a profile and/or create an account with PayCargo (“PayCargo Account”) to use our Platform. By creating a PayCargo Account, you represent that you are at least eighteen (18) years of age and are eligible to register and use the Platform for commercial purposes. Access to the PayCargo Account is granted through a login and password (“Login Credentials”) that you must create or that will be issued to you, and you agree to treat such Login Credentials as confidential.
1.3 Account Access. You shall grant access to the Platform only to those of your employees or those users whom you designate to use the Platform on your behalf (“Authorized Users”).
1.4 Credential Confidentiality. You are responsible for maintaining the confidentiality of the Login Credentials, and for ensuring that only Authorized Users have access to the Platform. All Login Credentials are the property of PayCargo. If you violate the Terms, we may, at the sole discretion of PayCargo, restrict or terminate your access to the Platform or require a change to the Login Credentials.
1.5 Responsibility For Use. You are responsible for actions taken on the Platform by your Authorized Users, or anyone who has accessed the Platform using your Login Credentials.
1.6 Notification of Unauthorized Access. You agree to notify us immediately of any unauthorized access to, or use of your PayCargo Account or Login Credentials.
1.7 Reclaiming Login Credentials. PayCargo reserves the right to remove or reclaim any Login Credential at any time, and for any reason, including but not limited to, any claims that a login violates a third-party’s rights.
1.8 Continuous Access. Because of the nature of our Platform, we may have access to the Platform temporarily disabled from time to time for maintenance or security reasons. We cannot and do not promise continuous or uninterrupted access to the Platform.
2.1 Application Process. To utilize the Platform, you must create a PayCargo Account and submit an online application (“Registration Application”) to register either as a user of the Platform who will be paying for freight or cargo fees, charges, and related services and expenses (a “Payer”), or a user of the Platform who will be invoicing for freight or cargo services and receiving payment (a “Vendor”) (the term “Customer” as utilized in these Terms is intended to cover, as applicable, both Payers and Vendors). During the registration process, we will ask you to provide information related to your business, including but not limited to, the name, address and telephone number of the business and the person registering the business, your tax identification number, invoice and payment details, credit card numbers, and bank account and routing numbers as applicable, for sending or receiving payment (all such information including any information submitted as part of providing Registration Application is “User Content”). It is a condition of your use of the Platform that all User Content that you provide is correct, current, and complete.
2.2 Verifying Information. By submitting the Registration Application, you authorize PayCargo or its designated agent: (a) to verify the truth, accuracy and completeness of the User Content; (b) to review and confirm any business, trade, bank, and/or credit references; and (c) to conduct screening and background checks of the Customer, including a criminal check of any director, manager, officer, principal, partner, or owner. We reserve the right to not offer anything through the Platform that is dependent upon the accuracy or completeness of User Content until we have confirmed such accuracy or completeness. You agree to provide cooperation regarding any inquiries that we may have regarding User Content.
2.3 Use of Platform. If PayCargo approves your right to use the Platform, you are granted a right to use and access the Platform subject to your compliance with these Terms. You acknowledge that any particular feature of the Platform may not be provided to you if such feature cannot be provided due to incomplete information you provide, or if PayCargo believes that such feature cannot be provided to you without causing you or PayCargo to violate any applicable law.
2.4 Application License. If you download the Application on your mobile device, you are granted a right to install and use the Application and you agree not to reverse engineer, decompile or otherwise attempt to view the source code for the Application. You agree not to distribute or modify the Application. If the Application has a separate license agreement that you must agree to, nothing in these Terms will modify such separate license agreement except that any conflict between the terms of such separate license agreement and these Terms shall be resolved in favor of such separate license agreement.
2.5 Completeness of Information. We rely upon you to provide us with accurate, correct, and complete instructions with respect to transactions handled by our Platform. If we have a reasonable basis for believing that the information provided is not accurate, or that the transaction is not in compliance with the Terms, we may contact you to address and resolve these concerns prior to taking any actions related to such transactions.
3.1 Payment Methods. The Platform will facilitate the settlement of commercial transactions between Payers and Vendors by processing the payment of Invoices (as defined below) submitted through our Platform in accordance with these Terms, and any applicable laws, rules and regulations. The payment methods available on the Platform are described below (“Payment Methods”) and may be modified from time to time, in the sole discretion of PayCargo. A Payer’s use of the Payment Methods is subject to transactional, debit, and credit limits. You understand and agree that we have the right, in our sole discretion, to apply, and change transactional, debit and credit limits related to a Payer’s use of the Payment Methods on our Platform.
The Overnight Debit Method allows a Payer to use a bank account to make an overnight payment to a Vendor through the Platform. Once a Payer approves an Invoice for payment on the Platform, funds are scheduled to be debited overnight from the Payer’s bank account, and a corresponding credit/payment to the Vendor’s bank account is scheduled for the next business day. For Canadian Users Only: PAD Agreement.
The Prepaid Method allows a Payer to deposit funds in advance into an account for a future payment to a Vendor through the Platform. Once a Payer approves an Invoice for payment on the Platform, funds are scheduled to be debited overnight from the previously funded account, and a corresponding credit/payment to the Vendor’s bank account is scheduled for the next business day.
Ship & Pay/Credit Card
The Ship & Pay/Credit Card Method allows a Payer to use a credit card to make a payment to a Vendor through the Platform by way of a credit card processing company. Once a Payer approves an Invoice for payment and authorizes the credit card payment, the Payer’s credit card is charged and the funds are debited from said card, and a corresponding credit/payment to the Vendor’s bank account is scheduled for the next business day.
PayCargo Capital Financing
The PayCargo Capital Financing Method allows a Payer to apply for a line of credit through a third-party financial institution. Once the credit line is approved, and the Payer approves the Invoice on the Platform, the funds are debited from the line of credit, and a corresponding credit/payment to the Vendor’s bank account is scheduled for the next business day.
3.2 Invoices. You understand, agree and represent that only current, correct, and valid invoices, air waybills, or bills of lading (or similar statements of amounts due) for freight and cargo fees, charges, and related costs and expenses (collectively, the “Invoices”) shall be submitted for payment through, and uploaded on, the Platform. You understand and agree that your approval of an Invoice on the Platform will be entirely and exclusively for the payment of such Invoice and the Platform Fees (as defined below). A Payer’s approval of an Invoice serves as assurance by the Payer that sufficient funds for the payment of the Invoice and the Platform Fees are available in the Settlement Account (as defined below). This approval confirms that the Payer authorizes us to debit the Settlement Account for payment of the Invoice and the Platform Fees in accordance with these Terms.
You are not permitted to submit any Invoice that is false or misleading or intended to defraud us, another Customer, or a third-party. Payers are not permitted to use the Platform to make any payment to anyone other than to a Vendor for the settlement of an Invoice, including, but not limited to, yourself or any employee, agent or associate of yours, or any subsidiary, affiliate or other related party. A Payer may choose to dispute an Invoice with a Vendor due to price, terms, quantity, service or any related charge or expense prior to approving an Invoice. It is the responsibility of the Payer and the Vendor to resolve each such dispute. If a dispute occurs after the approval of the Invoice by Payer, the Payer and the Vendor are responsible for settling said dispute. We will not be responsible for, and hereby disclaim any liability for, disputes that arise between the Payers and the Vendors.
3.3 Authorizations. By agreeing to use the Platform to make and/or receive payments for Invoices, you represent that you have proper authority to use, and disclose any relevant information, and that you authorize the initiation of debit and/or credit entries, as applicable, for the Payment Methods in accordance with instructions that you provide to us through the Platform, and any adjustments that may be necessary for any transactions debited or credited in error. We may request that you complete Automated Clearing House (“ACH”), Single Euro Payments Area (“SEPA”), or credit authorizations forms, or other authorizations as may be requested by us to facilitate the processing of payments for Invoices and Platform Fees. You will immediately provide us with notice of any changes to your ACH, SEPA, or credit card account, and agree to hold us harmless from liabilities resulting from payment transactions processed using outdated or incorrect information.
The Platform will generate payment instructions and schedule a payment transaction when a Payer approves an Invoice on the Platform. Upon approval, the Platform will send an email to the Vendor confirming the approval of the Invoice and transmit the payment transaction information to a regulated third-party financial institution, to process the transfer of the funds and settle the payment transaction. You authorize us to initiate debit and/or credit entries, as applicable, based on the User Content you provide to us when creating the PayCargo Account, submitting the Registration Application, and providing any related application and/or authorization forms.
Unless as otherwise agreed, an authorization for the payment of an Invoice and Platform Fees shall remain valid and in effect for: (a) a period of time reasonably necessary for us to complete the processing of a pending transaction; or (b) thirty (30) days after expiration or termination of the Terms, but in any event not less than such time period as may be required by applicable laws, rules and regulations.
3.4 Payment Method Restrictions. To prevent fraud and to comply with applicable laws, rules and regulations, we may place your payment transaction on hold for review. We may request information from you or third parties, in addition to the User Content you provide in a Registration Application. If you do not cooperate with us during our review process, your payment transaction may be delayed or declined. We reserve the right to limit, or refuse your use of a particular Payment Method for any reason in our sole discretion. We may impose limitations on the size, frequency, and timing of payments, on a per transaction or cumulative basis, and we may change these limits at any time in our sole discretion. We may decline in our sole discretion to make payments or otherwise deny your use of the Platform, and we disclaim any obligation to explain the basis for such decision.
3.5 Audit and Inspection. We may audit and/or inspect the records related to any commercial transaction or your performance, duties or obligations under these Terms, and for a period of one (1) year after the expiration or termination of the Terms, or one (1) year after the date of your last transaction on the Platform, whichever is latest. To assist with this process, you agree to provide requested supporting documentation for the Invoice such as air waybills, or bills of lading reflecting the dollar amounts due, the date of the services, and other related information. You agree to assist us in obtaining and verifying Invoices submitted for payment on the Platform. To the extent permitted by law, you will cooperate with examinations, requests, or proceedings of financial institutions, regulatory authorities or law enforcement agencies related to any audit or inspection of a commercial transaction.
3.6 Acknowledgements. You acknowledge and agree that we are not a money transmitter and that we do not and will not receive or store money or monetary value for transmission. All money and monetary value processed through the Platform will be received, stored, and transmitted through a settlement account maintained and controlled by a regulated third-party financial institution (“Settlement Account”). We may, in our sole discretion, use our own funds to prefund certain transactions that are approved for payment using a credit-based Payment Method. In such cases, you understand and acknowledge that all corresponding settlement funds subsequently received by a Payer or a credit provider on behalf of a Payer will be deemed a reimbursement to PayCargo for prefunding the transaction.
3.7 Payer Specific Terms. A transaction for the payment of an Invoice is considered paid three (3) business days after the transaction is submitted to the ACH, SEPA, or credit card system, so long as the ACH, SEPA, or credit card system does not report an error or returned status during such three (3) business day period. The Payer acknowledges that it is possible for a transaction identified as “paid” to later be reported as a returned item. If any funds relating to a debit transaction are returned for any reason, we may (in addition to any rights and remedies provided elsewhere in these Terms) initiate subsequent debits or credit card charges in any amount reasonably required to complete the processing and settlement of such transaction and to satisfy any corresponding fees.
The Payer understands, acknowledges and agrees that its failure to ensure sufficient funds are available in a bank account for any debit transaction, or that sufficient credit is available on a credit card account for a transaction, may result in additional charges from the banking institution, credit card company and/or PayCargo, which amounts will be subsequently deducted from the Payer’s account(s) or collected as otherwise permitted herein.
3.8 Vendor Specific Terms. To the extent that PayCargo is construed to receive money or monetary value for transmission under any federal or state law, rule, or regulation, you hereby appoint us as your agent for the limited purpose of facilitating and receiving payment of Invoices from Payers on your behalf for the provision of goods or services to such Payers and delivering such payment to you. You further understand, acknowledge and agree that any such payment found to be received by us through a Settlement Account, on your behalf, constitutes payment to you and satisfies any Payer’s obligation to pay you, regardless of whether we actually settle such payment to you.
4.1 Third-party Content. A portion of the content made available to you through the Platform is created, or provided, by other Customers and third-party content providers (such content, the “Third-party Content”). PayCargo is not responsible for the accuracy, completeness, or reliability of Third-party Content and makes no representations or warranties regarding the accuracy or completeness of any Third-party Content. PayCargo disclaims liability to the extent that you rely upon Third-party Content, and you understand and agree that PayCargo will not be responsible for, and PayCargo undertakes no responsibility to monitor the Third-party Content. You agree that PayCargo shall have no obligation and shall incur no liability to you in connection with Third-party Content.
4.2 Third-party Services. You may be offered services or products provided on our Platform, and not by PayCargo (“Third-party Services”). If you decide to use any Third-party Services, you will be responsible for reviewing and understanding the terms and conditions that may govern your use of Third-party Services. We are not responsible for the performance of any Third-party Services, and you agree to resolve any disagreement between you and a third-party provider regarding the terms and conditions of any Third-party Services with that third-party provider directly in accordance with the terms and conditions of that relationship, and not PayCargo.
4.3 Third-party Websites. Additionally, the Platform may contain links to third-party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by PayCargo. Such third-party websites are not governed by these Terms. You access any such third-party website at your own risk. We expressly disclaim any liability for these third-party websites. When you use a link to go from the Platform to a third-party website, our Platform Policies do not apply to such third-party website, and your browsing and interaction on a third-party website is subject to that third-party website’s own terms, rules and policies.
5.1 General Prohibitions. You may not use the Platform in order to transmit, distribute, store or destroy material: (a) in violation of any applicable laws, rules or regulations; (b) in a manner that will infringe upon the copyright, trademark, trade secret or other intellectual property rights of third parties or violate the privacy, publicity or other personal rights of third parties; or (c) that is defamatory, obscene, threatening, abusive or hateful.
5.2 Security Related Prohibitions. You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation: (a) accessing data not intended for the Customer, or logging into a server or account that the Authorized User is not permitted to access; (b) attempting to probe, scan or test the vulnerability of a system or network, or to breach security or authentication measures without proper written authorization from PayCargo; (c) attempting to interfere with service to any user, host or network; (d) sending unsolicited or unauthorized e-mails, including promotions and/or advertising of products or services; or (e) inputting banking, credit card or other information that such Customer is not authorized to input because such Customer is neither the lawful owner of, nor an Authorized User of, the bank account or credit card.
5.3 Prohibitions To Protect Integrity and Performance. You are expressly prohibited from: (a) providing any incomplete, false or inaccurate information when creating a PayCargo Account, completing the Registration Application, or submitting information on the Platform; (b) using any device, software or other means to interfere, or attempt to interfere with the proper working of the Platform or any activity being conducted on the Platform; (c) taking any action that imposes an unreasonable or disproportionately large load on the Platform infrastructure; (d) disclosing or sharing passwords with any non-authorized users or third parties or using passwords for any unauthorized purpose; (e) using or attempting to use any engine, software, tool, agent or other automated device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Platform other than the search engine and search agents provided on the Platform and/or generally available third-party web browsers (e.g., Google Chrome, Firefox, Microsoft Edge); and (f) attempting to modify, decipher, decompile, disassemble, create derivative works or reverse engineer any of the software comprising or in any way making up part of the Platform.
6.1 Ownership. As used in the Terms, “Intellectual Property Rights” or “IP” means all patent rights, copyright rights, moral rights, rights of publicity, trademarks and service mark rights, goodwill, trade secret rights, and other intellectual property rights, which may exist now or in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction. All Intellectual Property Rights in the Platform are owned by PayCargo or its licensors.
6.2 Use of Platform. PayCargo grants Customer a limited, revocable, non-exclusive, and non-transferable, license to use the Platform, subject to these Terms. Except as expressly provided herein, the Terms do not transfer any right, title, or interest in, or to any Intellectual Property Right, and all rights remain solely with PayCargo or such third parties as applicable, and no license, right, or interest to any Intellectual Property Right is granted herein. Customer is expressly prohibited from transferring, assigning, reselling, or sublicensing any rights to the Platform.
6.3 Restrictions to Protect IP. You agree not to modify, alter, remove, or deface any of the content, trademarks, service marks and logos viewable or displayed through the Platform. You also agree not to adapt, translate, modify, decompile, disassemble, copy, create derivative works of, or reverse engineer, the Platform or any software or programs used in connection with the Platform.
6.4 Use of Marks and Publicity. Neither Party will use any trademark, service mark, trade name nor other proprietary designation (collectively, “Marks”) owned, licensed or registered by the other Party without prior written consent of said Party; provided, however, PayCargo may use Customer’s name on the Platform confirming that the Customer is a Payer, Vendor, or both, or in Payer and Vendor lists or other publicity or advertising identifying the customers of PayCargo. Neither Party will use or reference the other’s Marks in any manner that disparages or portrays the other in a negative light. Neither Party may alter, modify, or change the other’s Marks in any way.
From time to time during the Term, PayCargo and Customer may disclose or make available to the other Party confidential information about its business, affairs, products, intellectual property, processes, methods, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third-party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under these Terms.
Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under these Terms, including to make required court filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving Party and will expire two (2) years thereafter.
Each Party agrees to employ appropriate safeguards to protect Confidential Information residing on their respective technology systems or under their control, including through their use of third party vendors or subcontractors, if any, in connection with the Platform. Each Party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Confidential Information (collectively, a “Security Incident”). In the event of a Security Incident involving the other Party’s Confidential Information, the affected Party will promptly: (a) assess the nature and scope of the Security Incident; (b) identify the Confidential Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Confidential Information was compromised, immediately notify the other Party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation.
9.1 Platform Fees. Payer may be required to pay certain fees, which may include annual, transactional, and implementation fees, to utilize the Platform, and the Payment Methods provided through the Platform, as set forth on https://paycargo.com/pricing/ (“Platform Fees”). The Platform Fees will be charged to the payment source that you provide to PayCargo (e.g., ACH, SEPA, or credit card,) and will appear on your statement as “PayCargo” or under a similar designation that contains the term “PayCargo.”
9.2 Payment of Fees. All Platform Fees are payable in the currency applicable to your PayCargo Account and due upon approval of an Invoice, and/or on an annual basis. For Platform Fees due on an annual basis, you consent to the Platform Fees being charged to, and withdrawn from, the payment source. Notice is hereby given that the amount of the Platform Fees is subject to change.
9.3 Authorizations. PayCargo’s authorization to charge Platform Fees may be obtained by way of your electronic signature, click-through agreement, or your physical signature and/or telephone affirmation.
9.4 Refunds and Outstanding Fees. All Platform Fees are non-refundable unless otherwise agreed in writing by both parties. Outstanding Fees are subject to an interest of 1.5% per month on the balance, or the maximum rate permitted by law, plus all collection expenses, including attorneys’ fees and costs. Your PayCargo Account may be deactivated and your access to the Platform may be denied for the non-payment of Platform Fees. A failure to use the Platform does not constitute a basis for a refusal to pay the Platform Fees. If you close your PayCargo Account, you are still responsible for the timely payment of all Platform Fees already incurred (including any late fees).
10.1 You represent and warrant to PayCargo that: (a) you are duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of your incorporation or other organization; (b) you have the full right, power, and authority to enter into, and perform the obligations and grant the rights, licenses, consents, and authorizations under the Terms; (c) all information you provide to us in connection with utilizing the Platform is accurate and complete; (d) you are not prohibited by any applicable law from using the Platform; and (e) your use of the Platform will not breach any contract.
10.2 THE PLATFORM, AND ANY SERVICE OBTAINED THROUGH, OR ON THE PLATFORM, IS PROVIDED ON AN “AS IS” BASIS, AND PAYCARGO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PAYCARGO SPECIFICALLY DISCLAIMS (A) ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT; AND (B) ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
10.3 EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, NEITHER PAYCARGO NOR ANY PERSON ASSOCIATED WITH PAYCARGO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE RELIABILITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER PAYCARGO NOR ANYONE ASSOCIATED WITH PAYCARGO REPRESENTS NOR WARRANTS THAT THE PLATFORM NOR ANY INFORMATION OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR SERVICES PROVIDED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
10.4 You acknowledge that we are not responsible for the actions or obligations of any Payer or Vendor and we do not ensure or guarantee any performance by a Payer or Vendor. You are solely responsible for entering into all agreements with a Payer or Vendor as applicable, and the Platform does not create any contractual relationship between you and any Payer or Vendor. We are not required to, nor do we seek to monitor the performance of any Payer or Vendor and you acknowledge that Paycargo (either through the Platform or through some other method) is not responsible for informing you of the status of any performance by any Payer or Vendor.
10.5 PAYCARGO DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY YOU OR AN AUTHORIZED USER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. PAYCARGO DOES NOT WARRANT THAT THE PLATFORM, YOUR INFORMATION OR ANY INFORMATION POSTED BY AN AUTHORIZED USER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION.
10.6 YOU ACKNOWLEDGE THAT PAYCARGO DOES NOT AND CANNOT CONTROL CONNECTION TO, AND ACCESS TO, OTHER SITES ON THE INTERNET. ACTIONS OR INACTIONS OF THIRD PARTIES MAY RESULT IN SITUATIONS IN WHICH YOUR CONNECTION TO THE INTERNET, USE OF PLATFORM, OR INFORMATION AND SYSTEMS MAY BE IMPAIRED, DISRUPTED OR DAMAGED. ALTHOUGH PAYCARGO WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PAYCARGO CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, PAYCARGO DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
10.7 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11.1 Term. These Terms commence on the date that PayCargo approves the Registration Application for a Customer, and will extend for an initial term of three (3) years from said approval date (“Initial Term”). Upon expiration of the Initial Term, these Terms will automatically renew for successive periods of one (1) year each (each a “Renewal Term”), unless PayCargo or Customer gives the other Party written notice of its intent not to renew these Terms at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term.
11.2 Termination Rights. For any termination rights below requiring written notice, you may notify us in writing utilizing the information in Section 15 (Contact Information, Notice) below.
(a) Either Party may terminate the Terms, effective upon written notice to the other Party, if the other Party breaches these Terms, and such breach is incapable of cure, or being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
(b) Either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge or sell any material portion of its property or business; or
(c) PayCargo may terminate these Terms or suspend your access to the Platform immediately without notice, and without liability to you if (i) we have reason to believe that you have violated these Terms, or your continued use of the Platform violates any federal, state, or local law, rule or regulation; (ii) PayCargo reasonably determines, based on its evaluation of Customer’s credit, financial condition, or business prospects, that a material adverse change has occurred in Customer’s financial condition, or that such a change is reasonably likely to occur and to adversely impact PayCargo; or (iii) Customer breaches any material representation, warranty, term, condition, or obligation under these Terms, and fails to cure such breach within ten (10) days after receiving notice of the breach.
11.3 Suspension of Rights. We may also temporarily suspend your right to use the Platform if we decide to investigate any possible violation of these Terms by you or further investigate whether your continued use of the Platform will cause you, PayCargo or any third-party to violate any applicable laws, rules, or regulations.
11.4 Effect of Termination or Expiration. Upon expiration or termination of these Terms, Customer shall discontinue use of the Platform, and no expiration or termination shall affect Customer’s obligation to pay all Platform Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
12.1 Indemnification By PayCargo. PayCargo agrees to defend, indemnify and hold you harmless from and against any and all claims, expenses (including reasonable attorneys’ fees), damages, suits, costs, demands and/or judgements whatsoever (collectively “Claims”), made by any third-party alleging that your use of the Platform, in accordance with and as permitted under these Terms, infringes upon the intellectual property rights of such third-party. PayCargo has no obligations under this section for any Claims arising from any modifications or additions you make to the Platform, or your use of the Platform after PayCargo has informed you that you must cease use of the Platform. You agree to provide all reasonable assistance to PayCargo in the defense of Claims.
12.2 Indemnification By You. You agree to defend, indemnify and hold PayCargo, its subsidiaries and affiliates, and it’s and their directors, managers, officers, employees, contractors, agents, and representatives (“PayCargo Group”), harmless from and against any and all Claims, made by any third-party due to or arising out of: (a) your use of the Platform in a manner that violates applicable law; (b) your breach of the Terms; (c) your violation of any rights of another individual and/or entity; and (d) any dispute between you and any other user of the Platform. The provisions of this “Indemnification By You” are for the benefit of PayCargo Group, and each of individuals and entities are third-party beneficiaries and shall have the right to assert and enforce these provisions directly against you on its own behalf.
12.3 LIMIT OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY THE LAW, NEITHER CUSTOMER NOR PAYCARGO NOR ITS MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, OR REPRESENTATIVES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING FROM OR RELATED TO: (A) THE USE OR MISUSE OF THE PLATFORM; (B) THE INABILITY TO USE THE PLATFORM; (C) ANY ACTION TAKEN IN RESPONSE TO, OR AS A RESULT OF, ANY INFORMATION AVAILABLE ON THE PLATFORM; (D) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE PLATFORM; OR (E) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE.
EXCEPT FOR AMOUNTS OWED FOR INDEMNIFYING CLAIMS AS REQUIRED UNDER THE “INDEMNIFICATION BY PAYCARGO” SECTION, THE TOTAL LIABILITY OF PAYCARGO UNDER THESE TERMS SHALL NOT EXCEED, AND IS LIMITED TO, THE TOTAL AMOUNT OF THE REVENUES THAT PAYCARGO RECEIVES FROM PROCESSING TRANSACTIONS FOR THAT CUSTOMER FOR THE TWELVE MONTHS PRIOR TO THE INCIDENT THAT IS THE BASIS OF THE DISPUTE.
THE LIMITATIONS SET FORTH ABOVE APPLY TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS, AND REPRESENT A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND PAYCARGO. ACCESS TO THE PLATFORM WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. THESE LIMITATIONS DO NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13.1 As security for any existing and future indebtedness of Customer to PayCargo, including claims for charges, expenses or advances incurred by PayCargo in connection with any transaction of Customer, and whether or not presently contemplated by Customer and PayCargo, Customer hereby assigns, transfers, conveys, pledges, mortgages and grants to PayCargo a first perfected priority security interest/lien in/upon all goods, documents of title and other property for which Customer provides for its customers and clients, any amounts, including settlement of any transactions, which are extended hereto, as well as any accounts receivable of Customer (collectively, with proceeds of the foregoing, the “Collateral”). The Collateral shall expressly be understood to include any and all goods, documents of title or other property for which Customer performs transportation and/or logistics services and/or for which Customer is referenced as an owner, shipper or consignee, regardless of whether advances were made hereunder for such transactions.
13.2 Customer expressly warrants and represents to PayCargo that Customer may hold and maintain valid liens, title and/or security interests in the Collateral by way of: (a) carrier’s and/or warehouse liens upon the Collateral under Article 7 of the Uniform Commercial Code, U.S. maritime law, and/or other applicable law; (b) consensual security interests in the Collateral under Article 9 of the Uniform Commercial Code or other applicable law; and/or (c) general and continuing liens pursuant to contractual agreements with its customers and/or its tariffs in effect governing the services provided by Customer to its customers. Customer expressly agrees that it holds the Collateral as bailee for PayCargo’s benefit to secure its obligations under these Terms and that PayCargo shall have a security interest and a general and continuing lien on any and all Collateral, wheresoever located, in the possession, custody or control of Customer and/or their respective agents, for any amounts owed by Customer to PayCargo with regard to the shipment on which the lien is claimed, a prior shipment(s) or both, and without regard to the services performed by Customer for their customers.
13.3 PayCargo is hereby granted power of attorney to execute and file appropriate financing statements on Customer’s behalf, including but not limited to UCC-1 statements, and Customer agrees to provide any and all additional documents necessary to enable PayCargo to file same or take any action to enforce or secure PayCargo’s rights hereunder. Customer hereby irrevocably appoints PayCargo as Attorney-in-Fact of Customer, coupled with an interest, with full power in Customer’s name, place and stead to execute and file financing statements on Customer’s behalf and to do any and all other acts on Customer’s behalf necessary or helpful to perfect and continue perfection of PayCargo’s security interest in the Collateral pursuant to the Uniform Commercial Code or other applicable law. This lien and security interest shall be in addition to any other rights PayCargo has or may acquire under other owner, conventions, tariffs and/or applicable laws, and shall survive delivery or releases of any Collateral.
13.4 In the event of any failure to fund or in the event of an Insufficient Funds or NSF notification or failure to pay any amounts due hereunder, Customer shall notify all parties having an interest in its shipment(s) of PayCargo ‘s rights and/or the exercise of such lien. Unless, within thirty (30) days of receiving notice of PayCargo’s intent to exercise such lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of PayCargo, guaranteeing payment of the monies owed, plus all charges accrued or to be accrued, PayCargo shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
We utilize software and technology that may be subject to U.S. laws that impose export restrictions or economic sanctions on, or otherwise prohibit or penalize, dealing with the governments, nationals, Specially Designated Nationals (“SDNs”) and products and services originating from or owned and controlled by certain countries or in which such governments, nationals or SDNs have an interest. These laws include the Export Administration Act of 1979 administered by the U.S. Department of Commerce and the economic sanctions regulations administered by the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) (all such laws, collectively the “Sanctions Laws”). Customer warrants, for the period during which Customer utilizes the Platform, that it and its Authorized Users are: (a) not located in or under the control of the government of a country subject to U.S. sanctions; and (b) are not on OFAC’s SDN list or the Department of Commerce’s denied persons list. Customer represents and warrants that the Platform will not be used, directly or indirectly, to facilitate payments to OFAC sanctioned countries or to SDNs in contravention of Sanctions Laws. Customer further warrants that the information, software and technology utilized in connection with the Platform will not be transferred, exported or re-exported to a sanctioned country, SDN or denied person or otherwise used in violation of the Sanctions Laws. Customer is responsible for ensuring that any necessary licenses for its business (including import and export licenses) are obtained from the relevant governmental authority. Customer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the data.
This Section 15 contains instructions on how to contact us directly with any questions or comments that you may have. If you have any questions about the Terms, please feel free to submit a message or email us at [email protected].
All notices or other communications under the Terms will be deemed given when mailed by first class registered or certified mail, postage prepaid, return receipt requested, or by nationally recognized courier service. All notices or other communications will be effective upon receipt. Any notice to PayCargo including any notice that you do not wish to be bound by the Terms or Platform Policies shall be directed to the attention of the Legal Department, Attn: Chief Legal Officer and General Counsel, PayCargo, Alhambra Circle, Suite 711, Coral Gables, FL 33134, and any notice to Customer shall be sent to the person and address listed on the Registration Application, or such other address as Customer may provide or designate in writing.
16.1 Right to Update. PayCargo reserves the right, at our discretion, to change, modify, add or remove provisions of these Terms, at any time by posting the amended Terms or Platform Policies on the Site or by informing you via the email that we have in our records as your Contact Email. You will be deemed to have accepted such changes by continuing to use the Platform after you have been informed of any changes or by any action that we may ask you to take to confirm your acceptance of such changes. Except as otherwise stated, all amended terms shall automatically be effective upon the earlier of: (a) your acceptance of the amended Terms or amended Platform Policies at the time you log into the Platform or (b) thirty (30) calendar days after the amended Terms or amended Platform Policies is initially posted on the Platform. If you inform us that you do not want to be bound by any amended Terms or amended Platform Policies, either by refusing to confirm such acceptance or by contacting us via the notice information in Section 15 after the posting of amended Terms or amended Platform Policies and prior to such amended Terms or amended Platform Policies go into effect, we reserve the right to terminate your use of the Platform.
17.1 Informal Dispute Resolution and Arbitration. In the event of a dispute between you and PayCargo, please contact us to resolve the dispute amicably. If we are unable to reach an informal solution, this Section 17 governs the resolution of any disputes between you and PayCargo.
17.2 Governing Law. These Terms and all related documents, and all matters arising out of or relating to these Terms or the use of the Platform, whether in contract, tort, or statute, are governed by, and shall be construed in accordance with the laws of the State of Florida, the U.S., without giving effect to the conflict of laws provisions to the extent that such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
17.3 Jurisdiction and Venue. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the federal and state courts in the State of Florida for the purpose of any suit, action, proceeding or judgment relating to or arising out of these Terms, the use of the Platform, and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each Party hereto anywhere in the world by the same methods as are specified for the giving of notices under these Terms. Each of the Parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in Miami-Dade. Each Party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
17.4 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS [OR THE OTHER TRANSACTION DOCUMENTS] IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS.
17.5 CLASS ACTION WAIVER. ANY DISPUTE RESOLUTION PROCEEDINGS IN COURT UNDER THIS SECTION 17 WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND PAYCARGO SPECIFICALLY AGREE TO DO SO IN WRITING. IF PERMITTED UNDER APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO LITIGATE IN A COURT OR ANY DISPUTE RESOLUTION PROCEEDING, INCLUDING ARBITRATION, AS A CLASS ACTION EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE OF A CLASS.
17.6 OPT OUT RIGHT. IF YOU DO NOT WISH TO BE BOUND BY THE CLASS ACTION WAIVER IN THIS SECTION 17, YOU MUST NOTIFY PAYCARGO IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THESE TERMS. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO PAYCARGO CUSTOMER SUPPORT AT 201 ALHAMBRA CIRCLE, SUITE 711, CORAL GABLES, FLORIDA 33134, OR BY EMAIL TO [email protected] AND MUST INCLUDE A CLEAR STATEMENT THAT YOU DO NOT AGREE TO THE CLASS ACTION WAIVER.
No waiver by the Customer of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition, or a waiver of any other term or condition, and any failure of the PayCargo to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
Neither Customer nor PayCargo may assign the Terms and/or any rights or obligations without the prior written consent of the other Party; provided, however, that no such consent shall be required for any assignment by PayCargo of the Terms and/or any rights or obligations to any (a) subsidiary or affiliate of PayCargo; or (b) successor pursuant to a merger, consolidation, sale of all or substantially all of its assets, or all or a substantial portion of the business, or by operation of law. Any attempted assignment in violation of this Section 19 will be deemed null and void. The Terms will extend to and be binding upon any permitted successors and assigns.
PayCargo and Customer are independent contractors. Nothing in the Terms will be deemed to create a joint venture, partnership, employment or similar relationship between the Parties. Except as specifically provided for herein, neither Party is an agent or representative of the other; and neither Party will represent otherwise.
PayCargo may subcontract any portion of the services related to the Platform, provided, that PayCargo will remain responsible for the performance of the services provided through these subcontractors.
Neither Party will be in default under the Terms, and the applicable Party will be excused from performing its obligations, if its performance is prevented, restricted, delayed or interfered with due to a Force Majeure Event, whether foreseen or not. A “Force Majeure Event” includes: (a) labor disputes, strikes, riot or other civil unrest; (b) flood, hurricane, tornado, lightning, severe weather, earthquake or other natural disaster; (c) rationing or other shortage of materials; (d) utility failures, electronic transmission failures or other electronic or communication failures or delays; (e) terrorism, embargo, blockade, revolution or other acts of war; (f) any change in laws, orders, rules, regulations, ordinances or other governmental or judicial acts impairing performance, or (f) other acts of God, all of which are beyond the Parties’ reasonable control.
In the Terms, the singular includes the plural and the plural the singular; the terms “including” and “include” shall mean “including without limitation”; and references to a “Section” shall mean a section of the Terms, unless otherwise expressly provided herein. Headings and captions contained in the Terms are for convenience of reference only.
Except as expressly stated herein, there are no third-party beneficiaries to the Terms and it will not be construed to create such rights, benefits or remedies generally.
The Terms constitutes the entire agreement between Customer and PayCargo for the provision and use of the Platform, and supersedes all prior agreements, written or oral, related to the Platform. The Terms incorporate and includes any related attachments, schedules or exhibits, as amended from time to time, as well as any Registration Application completed by Customer online, which are incorporated herein by reference. In the event that the Parties enter into a separate agreement with respect to the Platform, the agreement shall take precedence in the event of a conflict between the Terms and the said agreement.