ZIGU PLATFORM

 

TERMS & CONDITIONS OF SERVICES FOR RANSPORTERS

This Terms & Conditions of Services Agreement (the “Agreement”) describes the terms by which “Mizigo, Inc.” offers to you, as a Transporter, access to its website  (the “Site”) and its associated mobile software application platform (“Mobile App”). Mizigo provides the Services (as herein below defined) to connect Shippers with Transporters for the transportation of cargo whereby Shippers can submit a request for the transportation of cargo (“Shipment”). Transporters can accept such requests, and both Shippers and Transporters can track such requests. The Service includes access to all applications, content and downloads offered by Mizigo, including the Site, Mobile App, and associated user content. Mizigo does not assess the suitability, legality, regulatory compliance, quality or ability of any Shipper or shipped items scheduled through the use of the Service, and Mizigo makes no warranty regarding the same.

This Agreement sets forth the terms for use of the Platform and/or Service by Shippers. By signing up and registering with Mizigo or by accessing or using the Service, you are accepting this Agreement, on behalf of yourself or the company, entity or organization that you represent, and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement, on behalf of yourself or the company, entity or organization that you represent. Please read this Agreement carefully before using the Service. Use of the Service is conditioned on your agreement to all of the terms and conditions contained in the Agreement, including the policies and terms linked to or otherwise referenced in the Agreement, all of which are hereby incorporated into the Agreement. In the event any separate contract or like document governs or otherwise impacts the parties’ rights, obligations or relationship, this Agreement shall govern to the extent it does not conflict with the terms of any such other contract or like document.

 

BY SELECTING THE OPTION “I ACCEPT THE TERMS AND CONDITIONS” ON THE SITE OR THE MOBILE APP, YOU AGREE TO THIS AGREEMENT. IF YOU DO NOT SO AGREE, YOU SHOULD DECLINE THIS AGREEMENT, IN WHICH CASE YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE.

 

IT IS AGREED AS FOLLOWS:

1.      DEFINITIONS

 

1.1. “Transporter” means a motor transporter authorised by the relevant authorities, including government regulatory bodies, to haul cargo.

1.2. “Mizigo” means Mizigo Technology Pty Ltd, a private company incorporated in terms of the laws of the Republic of South Africa, with registration no. [please insert company registration no.] and having its registered place of business as [please insert address]

1.3. “Mobile Application” means a mobile software application platform owned and operated by Mizigo, through which it offers its Platform for requesting, offering and acceptance of services of a Transporter to transport cargo or goods of a shipper

1.4. “Platform” means an electronic, online platform provided by Mizigo for requesting, offering and acceptance of services of a Transporter to transport cargo or goods of a Shipper, including the Site and the Mobile Application.

1.5. “Services” means the services provided by Mizigo via the Platform of brokering the requesting, offering and acceptance of services of a Transporter to transport cargo or goods of a Shipper.

1.6. “Shipper” means a person (including a juristic person) or unincorporated entity that owns, possesses, or otherwise have rights to cargo that they seek to transport.

1.7. “Shipments” means the transportation of goods or cargo by a Transporter.

1.8. “Site” means a website of Mizigo, through which it offers its Platform for requesting, offering and acceptance of services of a Transporter to transport cargo or goods of a shipper.

1.9. “User” means any entity which accesses or uses the Service, and may be a Transporter or a Shipper.

1.10. “User Content” means any and all information, data, textual, audio, and/or visual content, commentary and feedback related to the Service, ratings, reviews and other content that a User submits to, or uses with, the Service. User Content includes the information provided in a Shipment request or acceptance.

1.11. “You” or “Transporter” means, the Transporter, who signs-up to, registers on, accesses or uses the Platform and the Services via the Site and/or the Mobile App.

 

2.     INDEPENDENT CONTRACTORS

Mizigo and You are independent contractors, and except to the extent required by law, no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

 

3.     SERVICES

3.1.    Shipment Requests

3.1.1. Mizigo provides a platform via the Mobile App and Website through which Shippers submit a request for a Shipment. Once Mizigo accepts a Shipment for posting, the Shipment’s details, as provided by the Shipper, will be posted to the Service. The Shipper may cancel a Shipment at any time prior to a Transporter accepting it. You may view a list of Shipments available to you at any time and accept a Shipment through the Platform.

3.1.2. Once you accept a Shipment, you will be required to perform transportation services related to the Shipment. Mizigo will notify the Shipper that the Shipment has been accepted.

3.1.3. Mizigo assigns Shipments to the first Transporter which accepts the posting and as such does not guarantee that your attempt to accept any Shipment will be successful. If your acceptance is successful, you will be notified through the Platform that the Shipment has been assigned to you. 

3.1.4. In the case that the Shipment was assigned to another Transporter and such other Transporter is unable, for whatever reason, to commence or complete the Shipment, then the Shipment will be re-posted to the Platform.

3.1.5. Once a Shipment has been assigned to you, you will be required to fulfil the Shipment in accordance with the requirements of the Shipper and any other requirements that were included in the Shipment request.

3.1.6. Within a reasonable time after accepting tender of cargo for transport, you shall upload to the Platform your bill of lading for the shipment. Mizigo shall not be named as either a shipper or consignee on any bill of lading. Mizigo is not responsible for any Shipment terms entered into between you and a Shipper.

3.1.7. Unless otherwise agreed, freight charges stated in the Platform and agreed to by your acceptance of Shipments hereunder include the transportation of the cargo from origin to destination; the cost of any fuel, tolls, ferry charges or other expenses related to the operation or maintenance of your equipment; and any other specialized services or equipment contemplated in the load tender (including, but not limited to amounts for refrigerated trailers, lift-gate service, loading or unloading, etc.). If any additional services not contemplated at the time a Shipment is posted are provided by Transporter, then you as the Transporter will use its best efforts to provide Mizigo a notice in good time prior to the commencement of a Shipment,  of any and all unspecified ancillary services or costs incurred so that Mizigo may attempt to obtain Shipper approval of such charges prior to commencement of the Shipment. Absent express prior agreement, Mizigo does not guarantee that charges for accessorial and/or ancillary services by the Transporter will be paid, and shall not be held liable for such invoices or charges.

3.1.8. Once a Shipment is completed, you shall post to the Platform a proof of delivery signed by the authorized recipient within 24 hours of delivery.

3.1.9. Transporter will ensure that the vehicle is fitted with a fleet tracking API, and will provide Mizigo with the necessary authorisation to access information related to the geolocation of the vehicle, in order to enable same to be tracked by both Mizigo and the Shipper on the Platform.

3.1.10.   Mizigo may, as a convenience and value added service, provide you through the Service with access to GPS services, Google Maps or similar service to suggest routing. However, any such routing information is for your convenience only, it is neither instructional nor mandatory.

 

4.      TRANSPORTER’S RESPONSIBILITIES

4.1.    Documents due at registration

4.1.1. Upon registering on the Platform, you shall provide Mizigo, with the following documentation:

[please insert list of documents that Transporter must supply on registration]

4.2.    Insurance

4.2.1. You shall procure and maintain, at your sole cost and expense, with reputable and financially responsible insurance underwriters acceptable to Mizigo, the following insurance coverages:

4.2.1.1.    Vehicle insurance to include any vehicle, or all owned, non-owned and hired vehicle, covering bodily injury (including injury resulting in death) and loss of or damage to property in an amount not less than [please insert amount] per incident. If the applicable law, rule or regulation requires the Transporter to maintain amounts in excess of these limits, you shall provide such higher limits.

4.2.1.2.    Cargo insurance in an amount not less than [please insert amount] per incident, and shall not contain any exclusions for employee theft or dishonesty, unattended or unattached trailers, or other limitations that are likely to result in denial of claims (including commodity specific exclusions, exclusions for corrosion, or exclusions related to use of refrigerated equipment, including breakdown). If Transporter maintains limits in excess of these amounts, Transporter may qualify for Shipments not otherwise available to Transporters only maintaining such minimum amounts.

4.2.1.3.    Proof of registration and good standing in terms of COID Act (i.e. COID certificate), or such equivalent worker’s compensation that is sufficient to meet any and all applicable laws, rules and regulations.

4.2.1.4.    Any other insurance that may be required from time to time by Mizigo in view of any applicable laws, rules, regulations or ordinances.

4.2.2. You shall provide to Mizigo certificates of insurance and, on request, copies of all policies and endorsements.

4.2.3. You will ensure Mizigo is provided notice of cancellation or modification of any insurance required under this agreement at least 30 days in advance of any cancellation or modification of the required insurance taking effect. Transporter will not provide services under this Agreement at any time that Transporter is not in compliance with the provisions of this clause 4.2.

 

4.3.    Subcontractors

4.3.1. You shall not subcontract, assign, or cause or permit any other person or entity to perform any of your obligations hereunder, or cause or permit any Shipment tendered hereunder to be transported by any other third-party Transporter, or any other substitute mode of transportation, without the express written consent of Mizigo and the Shipper.

4.3.2. If Transporter breaches this provision, without limiting any other right of Mizigo or the Shipper, Transporter shall remain fully liable pursuant to this Agreement as if it had transported the Shipment on vehicles operating under its for hire motor Transporter authority (including liability for cargo loss and damage claims and including the duty to defend, indemnify and hold harmless against the acts and omissions of Transporter and its contractors).

4.3.3. Transporter acknowledges and agrees that if any third party makes a claim against Mizigo or the Shipper with respect to Shipments tendered to Transporter for transportation hereunder, Mizigo shall have the option to pay such third party directly and shall have no duty to pay Transporter with respect to any such Shipment. Mizigo shall have the right to offset the amount of payment to such third party against any funds due and owing to Mizigo due to Transporters breach of this provision. Further, Mizigo shall have the right to claim and collect any damages, including consequential, incidental, incidental and indirect damages from Transporter arising out of a breach of this provision.

 

4.4.    Compliance With Laws

4.4.1. Transporter acknowledges that it is authorized to provide transportation of any Shipments requested or obtained through the Service as a for-hire motor Transporter in accordance with any and all applicable laws, rules and regulations

4.4.2. Transporter undertakes to ensure compliance, including by its officers, employees, drivers contractors, subcontractors and/or agents with all applicable laws, rules, regulations and ordinances. Transporter shall defend, indemnify and hold Mizigo and Shippers harmless from and against any and all fines, penalties, judgments, liabilities, expenses and costs of any nature resulting from your failure to comply with all such laws, rules, regulations and ordinances, of the failure of your officers, employees, drivers contractors, subcontractors and/or agents .

4.4.3. The foregoing obligations include, but are not limited to, compliance with all applicable laws, rules and regulations applicable to: transportation of hazardous materials  to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances and alcohol testing, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products.

 

4.5.    Equipment

4.5.1. You warrant that you shall perform all transportation services pursuant to this Agreement with equipment that is regularly maintained and is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations. You will furnish equipment for transporting cargo which is clean, dry, leak proof, free from harmful or offensive odor, sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the cargo being transported.

4.5.2. Transporter is solely responsible for ensure that all equipment has been properly loaded, secured, blocked and braced. You acknowledge that Mizigo will never be in possession of any cargo being transported in connection with use of the Service, and that Mizigo will not be responsible or have any role in the securement of cargo for transportation.

 

4.6.    Non-Solicitation

4.6.1. During the term of this Agreement, and for a period of one (1) year from its termination, you shall neither initiate nor accept any direct or indirect business relationship with any Shipper where Shipments to or from such Shipper were first transported pursuant to the Service, or in connection with use of the Service. Your obligation in this regard extends to instances where a Shipper contacts you and seeks to establish a business relationship that does not include Mizigo. This provision shall continue in force beyond termination of this Agreement for one (1) year subsequent to termination.

4.6.2. If you book or otherwise makes available any direct or indirect business relationship with any Shipper that was first introduced to you by Mizigo in violation of this Agreement, you shall be jointly and severally liable with the Shipper to Mizigo for each such violation in an amount equal to [please insert percentage] of all revenues paid by the Shipper to you.

 

4.7.    Transporter Liability for Cargo Loss or Damage

4.7.1. Transporter’s liability for lost, destroyed, damaged or delayed Shipments shall include, but not be limited to, amounts required to inspect, test, segregate and process claims. In addition to any such liability, if Shipper assesses charges against Mizigo with respect to late deliveries by Transporter, Transporter shall be responsible for such amounts regardless of whether these is loss, damage or destruction to the Shipment in question.

4.7.2. Mizigo may assist Shippers with claims against Transporters for lost, damaged, delayed or destroyed cargo and Transporter acknowledges and agrees that Mizigo may likewise file such claims directly as the assignee of the Shipper. Shipper and Mizigo shall have twelve (12) months from the date of delivery of any Shipment (or, if no delivery, then not less than twelve (12) months from the date on which delivery should have occurred)during which to file claims.

4.7.3. Shipper shall have sole discretion as to whether to allow salvage of any damaged Shipment. If no salvage is allowed, Transporter shall not be entitled to a credit for salvage value. Any expenses incurred in preparation of goods for salvage shall be borne by Transporter.[Please advise if this applies]

4.7.4. Transporter will abide by any cargo handling instructions communicated to Transporter by Mizigo or the Shipper, including any regarding provision of temperature controlled service. If cargo is tendered and a reasonable person would understand such cargo to require controlled temperature service, and no such service has been requested, Transporter shall contact Mizigo immediately and in any event, prior to loading any such cargo onto Transporter’s conveyance. Without limiting the foregoing, if Transporter is providing service with respect to commodities requiring temperature control, Transporter shall ensure that its equipment is pre-cooled to required temperature ranges prior to or at the time of loading, and shall ensure that temperature is maintained at all times within specified temperature ranges. Transporter shall maintain the ability to provide a downloadable report of temperature during transit, and will retain such records for no less than two (2) years from the date of delivery, which records will be made available to Mizigo or Shipper upon request. Transporter acknowledges and agrees that failure to abide by instructions regarding handling of food or evidence of possible unauthorized access to shipments may result in rejection of shipments due to possible adulteration or contamination.

4.7.5. Any attempt to limit your liability for lost, destroyed, damaged or delayed Shipments, including, but not limited to, via provisions contained in any bill of lading, delivery receipt or tariff shall not form part of this Agreement and shall not apply in respect of any Shipment obtained through the Services. Exclusions in your insurance coverage shall not exonerate you from this liability.

 

4.8.    Shipping Documents

4.8.1. You shall not insert “Mizigo” or “Mizigo Pty Ltd.” on any receipt, bill of lading, manifest, or other shipping document. In the event you do so, such insertion shall be deemed to be for your convenience, or due to your oversight, and shall not operate to alter Mizigo’s status as the provider of Services or the Transporter’s status as the responsible Transporter. The provisions set forth in any shipping document maintained by Transporter (including, but not limited to, any bill of lading, proof of delivery, motor Transporter tariff, rate confirmation sheet or other documentation) shall not apply to any transportation performed pursuant to clause 4.9.

4.9.    Compliance with Instructions

4.9.1. Transporter shall comply with any and all instructions regarding the handling of the Shipment which are communicated to Transporter by Shipper or Mizigo, whether pursuant to the Service, on the applicable bill of lading, or via other documentation provided to the Transporter.

4.9.2. Transporter shall, and shall cause its drivers, to comply with rules in effect at any locations where Transporter is performing pick-up or delivery services.

 

4.10. Indemnity

4.10.1.   Transporter shall defend, indemnify, and hold Mizigo, the shipper, and each of their affiliated entities harmless from and against, and shall pay and reimburse, any and all all direct or indirect loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the performance or breach of this agreement by transporter, its employees, subcontractors or independent contractors (collectively, the “claims”), including, but not limited to, claims for or related to personal injury (including death), property damage and transporter’s possession, use, maintenance, custody or operation of the equipment; provided, however, that transporter’s indemnification and hold harmless obligations under this paragraph will not apply to the prorated extent that any claim is directly and proximately caused by the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless.

4.10.2.   Transporter hereby expressly waives any exclusive remedy defense, including, but not limited to, those available under any workers’ compensation or other occupational accident statutory regime, to the extent necessary to effectuate transporter’s obligations under this provision.

 

4.11. Additional Obligations

4.11.1.   Transporter will provide exclusive use of equipment being used to handle any Shipment and will not allow the cargo of any third party to be transported on Transporters equipment while such equipment is being used to haul any Shipment under this Agreement. At no time will Transporter allow any trailing equipment being used to transport any Shipment become unattached from the power unit being used to transport such cargo.

 

5.      TRANSPORTER SELECTION

5.1.    Mizigo is not responsible in any way for the acts and/or omissions of Transporters or their drivers.

5.2.    Mizigo provides a means for Shippers and Transporters to rate and review each other and to have those ratings made available to other Users. We do not express any opinion, nor does Mizigo make any assurances regarding, the truth or accuracy of any User reviews or ratings. Mizigo does not regularly monitor or remove reviews or ratings, or any portion thereof, unless they contain Content we deem inappropriate in our sole discretion.

 

6.     PAYMENT TERMS

6.1.    Rates and Payment

6.1.1. For each Shipment, Shipper will pay Mizigo the freight charge quoted to the Shipper upon acceptance of the applicable Shipment on the Service (“Transporter Fee”), as well as additional amounts, if any, paid by the Shipper for additional services provided by Transporter with respect to a Shipment.

6.1.2.  

6.2.    General Payment Terms

6.2.1. You agree that you are responsible for the collection and/or payment of all taxes, which you may be liable for in any jurisdiction arising from your use of the Service. Mizigo is not responsible for collecting, reporting, paying, or remitting to you any such taxes.

6.2.2. Mizigo shall pay freight charges quoted to you on the Service regardless of whether Shippers pay Mizigo. In exchange for this guarantee of payment, you shall not invoice or otherwise attempt to collect any amounts related to services provided with respect to any Shipment from any Shipper or any other third party; Transporter shall look solely to Mizigo for payment of freight charges hereunder. You hereby waive any right you may otherwise have to proceed or commence any action against any Shipper for the collection of any freight bills arising out of transportation services hereunder. Furthermore, Transporter waives any and all lien rights with respect to any Shipment and if any lien is claimed with respect to any such Shipment by Transporter or a third party to which Transporter tenders such Shipment, Transporter shall immediately take such action as is necessary to satisfy such lien.

 

6.3.    Payment Facilitation and Processing

6.3.1. All charges are facilitated through a third-party payment processing service. Mizigo may replace its third-party payment processing services without notice to you.

6.3.2. Mizigo’s Payment processing services are provided by [Please insert your payment platform] and subject to the Terms & Conditions of [Please insert your payment platform] By using the Zigu Platform to receive payment proceeds, you agree to be bound by the Terms, which may be modified from time to time. As a condition of Mizigo enabling payment processing services through [Insert name of payment platform] you authorize Mizigo to obtain all necessary information to facilitate your provision of Services as contemplated by the Agreement and your relationship with Mizigo. You further agree to provide accurate and complete information about you and your business, and authorize Mizigo to share it and transaction information with [Insert name of payment platform]  for the purposes of facilitating of the payment processing services provided by [Insert name of payment platform]. Mizigo reserves the right to switch payment processing vendors in its sole discretion.

 

7.     LICENSES

7.1.    Accounts

7.1.1. In order to use certain features of the Service, you must register for an account with Mizigo (“Account”) and provide certain information as prompted by the registration and Shipment creation form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by contacting Mizigo or following the instructions on the Service. You are responsible for maintaining the confidentiality of your Account login credentials and are fully responsible for all activities that occur under your Account. You agree to immediately notify Mizigo of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Mizigo is not liable for any loss or damage arising from your failure to comply with the above requirements.

7.2.     

 

7.3.    Telephone Calls and Text Messages

7.3.1. Upon registration for an account, you will be asked to provide us with a telephone number at which we can reach you. That number is required to connect Shippers with Transporters for the transportation of cargo and so that Mizigo can reach you with informational calls and SMS and/or MMS text messages related to the transportation of cargo. The frequency of text messages that we send to you depends on your transactions with us and you consent to receive text messages sent through an automatic telephone dialing system. All calls to and from Mizigo may be monitored or recorded for quality and training purposes.

7.3.2. If you elect to receive promotional text messages in connection with your account, we may also send you promotional text messages and you consent to receive text messages sent through an automatic telephone dialing system.

7.3.3. All charges are billed by and payable to your wireless service provider. Please contact your wireless service provider for pricing plans and details. If you wish to opt out of such text messages, you may do so by following the "opt-out" instructions in the text message, or by editing your account settings. Message and data rates may apply. We will treat data collected through text messages in accordance with our Privacy Policy.

 

7.4.    Site

7.4.1. Mizigo owns and retains ownership in the Site and all intellectual property therein. Subject to the terms of this Agreement, Mizigo grants you a limited, non-transferable, non-exclusive, revocable license to use the Site for your internal business use during the term of this Agreement.

 

7.5.    Mobile Application

7.5.1. Mizigo owns and retains ownership in the Mobile Application and all intellectual property therein. Subject to the terms of this Agreement, Mizigo grants you a limited, non-transferable, non-exclusive, revocable license to install and use the Mobile Application, in executable object code format only, solely on your own handheld mobile device and for your internal business use during the term of this Agreement.

 

7.6.    Restrictions

7.6.1. The rights granted to you in this Agreement are subject to the following restrictions:

7.6.1.1.       You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service;

7.6.1.2.       You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service;

7.6.1.3.       You shall not access the Service in order to build a similar or competitive service; and

7.6.1.4.       Except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.

 

8.      INSURANCE

8.1.    Mizigo agrees to maintain, at its own expense, at all times, at least the following insurance coverage amounts:

General Liability: [please insert insurance amount]
Auto Liability: [please insert insurance amount]

Contingent Cargo Liability: [please insurance amount]

8.2.    Upon request, Mizigo may procure insurance coverage amounts that exceed these limits, and the evidence of such coverage shall be in the form of an insurance certificate provided to you on request. Mizigo’s maximum liability to you for any loss shall be limited to Mizigo’s insurance policy terms and conditions and the dollar amounts for coverage hereinbelow.

8.3.    Mizigo’s contingent cargo insurance is subject to the terms, conditions and certain limitations and/or exclusions as contained in the policy, and the terms, conditions and requirements as outlined within this Agreement, which are subject to change at any time. The existence of Mizigo’s contingent cargo insurance in no way shifts or places any legal or contractual liability on Mizigo, nor does it exonerate the your duties and liabilities under this Agreement.

 

9.      OWNERSHIP

9.1.    Mizigo owns intellectual property rights in and to the Service, including but not limited to the Site, Mobile Applicaton, including all related software and servers, in and to our trademarks, service marks, trade names, logos, domain names, taglines and trade dress (collectively, the “Marks”).

9.2.    Users acknowledge and agree that Mizigo owns all right, title, and interest in and to the Service, including all intellectual property rights therein. Users understand and agree that without a written license agreement with Mizigo, Users may not make any use of the Marks. Except as expressly granted in this Agreement, all rights, title and interest in and to the Service, and in and to the Marks are reserved by Mizigo.

 

10.   MODIFICATION OF THE SERVICE

10.1. Mizigo reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Mizigo will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.

11.   LIMITATIONS ON USE OF THE SERVICE

11.1. You agree not to use the Service to upload, transmit, display, or distribute any User Content that: (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way.

11.2. In addition, you agree not to use the Service to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Service; or (g) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service.

11.3. Mizigo reserves the right to review any User Content, investigate, and /or take appropriate action against you in its sole discretion, including removing or modifying User Content, terminating your Account, and/or reporting you to law enforcement authorities. However, Mizigo has no obligation, to monitor, modify or remove any User Content.

 

12.  TERM OF AGREEMENT

12.1. This Agreement will remain in full force and effect while you use the Service. Mizigo may at any time terminate this Agreement in its sole discretion if (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) Mizigo is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) Mizigo has elected to discontinue the Service; or (d) for your poor performance as a Transporter in Mizigo’s sole discretion. Upon termination of this Agreement, your Account and right to access and use the Service will terminate immediately.

 

13.   USER CONTENT

13.1. User Content

13.1.1.   You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate any provision of this Agreement. For the avoidance of doubt, User Content may include third party content you submit. You agree not to submit third party content unless you have the consent of the applicable third party owner of such content. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Mizigo. You acknowledge and agree that Mizigo is not responsible for any loss or damage resulting from anyone’s use or reliance on User Content and Mizigo makes no guarantees regarding the accuracy, completeness, usefulness currency, suitability, or quality of any User Content, and assumes no responsibility for any User Content.

 

13.2. License

13.2.1.   You hereby grant, and represent and warrant that you have the right to grant, to Mizigo an irrevocable, nonexclusive, royalty-free and fully paid, sublicenseable, worldwide license, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels, now known or hereafter devised (including in connection with the Services and Mizigo's business and on third-party sites and services), without further notice to or consent from You, and without the requirement of payment to You or any other person or entity. All rights in and to the User Content not expressly granted to Mizigo in this Agreement are reserved by Transporters.

 

13.3. Anonymous Data

13.3.1.   Mizigo may create anonymous data records (“Anonymous Data”) from your User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to you. Mizigo may use and disclose Anonymous Data for any purpose, including improving the Service.

13.4. Disclosure

13.4.1.   Mizigo may share your User Content (a) with third party service providers; (b) if another company acquires Mizigo; and/or (c) to comply with relevant laws, to respond to subpoenas or warrants or assist in preventing any violation or potential violation of thelaw or this Agreement.

 

14.   THIRD PARTY SITES AND LOCATION INFORMATION

14.1. Third Party Sites

14.1.1.   The Service might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Mizigo and Mizigo is not responsible for any Third Party Sites. Mizigo does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.

 

14.2. Location Information

14.2.1.   Location data provided by the Service is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage, or other loss. Neither Mizigo, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Services, whether provided by Mizigo, third party content providers, or Users.

14.2.2.   Geolocational data that You upload, provide, or post on the Services may be accessible to certain Users of the Services. You assume any and all risk of providing such data to other Users of the Services.

 

15.   INDEMNITY

15.1. Indemnification of Mizigo

15.1.1.   You agree to defend, indemnify and hold Mizigo (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (i) use of the Service, (ii) User Content, (iii) interaction with any other User, (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) your shipment services. Mizigo reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Mizigo. Mizigo will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

15.2. Indemnification of Shipper

15.2.1.   You agree to defend, indemnify and hold Shippers (and their officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of your performance of this Agreement, to the extent such damages, claims or losses are caused by you or your employees’ or agents’ negligence or intentional conduct.

16.    CHOICE OF LAW

16.1.              This Agreement shall be deemed executed in Johannesburg, Gauteng, South Africa, and shall be interpreted, in the event of a dispute arising hereunder under the laws of South Africa. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.

 

17.   DISPUTE RESOLUTION

17.1.              In the event of a dispute arising out of this Agreement related to claims by or against Mizigo, a party’s recourse shall be exclusively settled through binding and confidential arbitration. The arbitration shall be conducted before one arbitrator from Abitration Foundation of South Africa (AFSA). Arbitration proceedings shall be conducted under the rules of the AFSA

17.2.              Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the AFSA. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.

17.3.              Arbitration proceedings shall be conducted in Johannesburg, Gauteng, South Africa, or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in South Africa for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.

17.4.              This paragraph does not apply to claims you may have against Shipper.

 

18.   GENERAL PROVISIONS

18.1.              Changes to Agreement

18.1.1.   This Agreement is subject to occasional revision by Mizigo. In the event of any material changes made to the Agreement, Mizigo will notify you by electronic mail, or other means of communication, before your next use of the changes on the Service. Any changes to this agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. These changes will be effective immediately for new Users of the Service. Continued use of the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

18.2.              Entire Agreement

18.2.1.   This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Mizigo’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.

18.3.              Assignment

18.3.1.   This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Mizigo’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.

18.4.              Notices

            The following addresses shall apply as the domicilium citandi executandi;

 

18.4.1.   MIZIGO

Physical Address:

Postal Address:          

Fax No:                       

For the Attention of:

Email:                                      

18.4.2.   TRANSPORTER

The details provided by the Transporter in the registration process.

18.5.              Any notice given by post shall be deemed to have been served on the expiry of 7 (seven) working days after it is posted by registered post. Any notice delivered by hand shall be deemed to have been served at the time of delivery or sending. Any notice sent by facsimile or electronic mail (e-mail) shall be deemed to have been served on the expiry of 24 (twenty four) hours after it has been sent.

18.6.              Publication of Information

18.6.1.   Mizigo has your permission to identify you as a customer of Mizigo or user of our Services and to reproduce your name and logo on the Site and in any other marketing materials.

18.6.2.   If you provide Mizigo any feedback, suggestions, or other information or ideas regarding the Service (“Feedback”), you hereby assign to Mizigo all rights in the Feedback and agree that Mizigo has the right to use such Feedback and related information in any manner it deems appropriate. Mizigo will treat any Feedback you provide as non-confidential and non-proprietary. You agree that you will not submit to Mizigo any information or ideas that you consider to be confidential or proprietary.

18.7.              Severability

18.7.1.   In the event that the operation of any portion of this Agreement results in a violation of any law, or if any provision herein is determined by a court of competent jurisdiction to be invalid or unenforceable, Shipper, Mizigo and Transporter agree that such portion or provision shall be severable and that the remaining provisions herein shall continue in full force and effect. The terms and conditions set forth herein shall survive the termination of this Agreement.

 

18.8.              Disclaimer

18.8.1.   the service is provided "as is" and "as available." Mizigo expressly disclaims any warranties and conditions of any kind, whether express or implied or statutory, including the warranties or conditions of merchantability, fitness for a particular purpose, or non- infringement. Mizigo makes no warranty that the service: (a) will meet your requirements or expectations; (b) will be available on an uninterrupted, timely, secure, or error-free basis; (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe; or (d) result in any revenue, profits, or cost reduction. the service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Mizigo is not responsible for any delays, delivery failures or other damages resulting from such problems.

18.8.2.   You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.

18.8.3.   Mizigo's services may be used by you to request and schedule transportation services with other users, but you agree that Mizigo has no responsibility or liability to you related to the services or any transportation services coordinated or offered or purchased by you through the services other than as expressly set forth in this agreement. you assume all liability and risk of using the services and coordinating and/or offering transportation services.

18.8.4.   we reserve the right, but have no obligation, to monitor disputes between you and other users. please carefully select the type of information that you post on the site or through the services or release to others. we disclaim all liability, regardless of the form of action, for the acts or omissions of other users (including unauthorized users, or “hackers”). Mizigo only offers technology that enables transporters to coordinate transportation services. Mizigo is not a transporter. we are not involved in the actual transportation of cargo. as a result, we have no control over the quality or safety of any vehicle, cargo or of the transportation that occurs as a result of this service; nor do we have any control over the truth or accuracy of users' information listed on Mizigo. we reserve the right to change any and all content, software and other items used or contained in the services at any time without notice.

18.8.4.1.       the service may be temporarily unavailable from time to time for maintenance or other reasons. Mizigo assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Mizigo is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the internet or at any site or combination thereof, including injury or damage to a user's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the web and/or in connection with the services.

18.9.              Limitation of Liability

18.9.1.   Mizigo shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Mizigo has been advised of the possibility of such damages, even if a limited remedy set forth herein is found to have failed of its essential purpose.

18.9.2.   Mizigo shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the service or your inability to access or use the service; or (ii) any transaction or relationship between you and any other user or any third party. Mizigo shall not be liable for delay or failure in performance resulting from causes beyond Mizigo's reasonable control. in no event shall Mizigo's total liability to you in connection with the service for all damages, losses and causes of action exceed five [please include maximum value of liability]

18.9.3.   the limitations and disclaimer in sections 21.9.1, and 21.9.2 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.

18.9.4.   The assumption of risk and limitation of liability set forth above is a fundamental element of the basis of the bargain between Mizigo and you.

If you have any questions about this Agreement, please contact Mizigo at [please include email address and/or telephone number]