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]
