Conditions générales d’utilisation
This Agreement was last updated on June 22, 2020, and it can be accessed at www.hubtimize.com. It is effective between you and HUBTIMIZE as of the date of your acceptance of this Agreement.
The guidebook for using HUBTIMIZE, whether you’re using it to compare, book, and manage your logistics projects, or selling your logistics services online.
Welcome to HUBTIMIZE !
This Agreement is between MARCO LOGISTIQUE (owner of HUBTIMIZE platform), a Cameroonian company based in Douala, trading as “HUBTIMIZE” and you.
Phone number : +237 690 366717
Email address : [email protected]
Hubtimize.com is hosted by SiteGround Hosting Ltd., headquartered at 3rd Floor, 11-12 St. James’s Square, London SW1Y 4LB, UK. registered in England and Wales. Company Registration No: 09348602, VAT: GB223072547 www.siteground.co.uk.
PLEASE READ THE PRESENT GENERAL TERMS AND CONDITIONS BEFORE ALL USE OF HUBTIMIZE AND BEFORE ALL ACCES TO OUR SERVICES.
This Agreement governs your access to, and use of all of HUBTIMIZE’ sites and services (“HUBTIMIZE’ Services”). The HUBTIMIZE’ Services, corporate websites, and tools are collectively called the “HUBTIMIZE Platform”.
Table of Contents
By using HUBTIMIZE, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, you cannot use HUBTIMIZE and/or he HUBTIMIZE Services.
To the extent that there is a conflict between this Agreement and any other documents executed between you and HUBTIMIZE, including any Purchase Order or Statement of Work between you and HUBTIMIZE which references this Agreement, the provisions of this Agreement will govern, unless you agree otherwise with HUBTIMIZE in a written agreement.
There are also some other documents which operate in conjunction with this Agreement.
These documents and this Agreement may be updated from time to time, and to the extent that there is a conflict between this Agreement and any of these documents, the provisions of this Agreement will govern.
- Types of Service. We offer different types of services. These can be provided through our own website, through external logistics Services Providers, or through digital channels like HUBTIMIZE APIs. Services include but are not limited to digital services of logistics quote comparison and online sales.
- Services for HUBTIMIZE Shippers : A company that chooses to compare, book, and/or manage quotes or shipments from Logistics Providers through HUBTIMIZE is a “Shipper”. If that’s you, you can use HUBTIMIZE to search for suitable Logistics Providers, obtain quotes and facilitate Orders between you. You can also communicate with the Logistics Providers, and manage payments.
- Services for HUBTIMIZE Logistics Providers : If you provide, offer to sell, and sell Logistics Services (including as a carrier, cargo surveyor, handler, NVOCC, warehouse owner, freight broker or freight forwarder, insurer or customs broker), and if you choose to sell HUBTIMIZE Services or authorize HUBTIMIZE to offer your rates to Shippers through the HUBTIMIZE Platform, you are a “Logistics Provider” and you engage in “Selling”. Although HUBTIMIZE is not a Logistics Provider and not party to any agreement between a Logistics Provider and a Shipper, we help you to market your services online, manage your offers, receive Orders on your behalf, and act as your collection agent to collect payments via HUBTIMIZE.
- We will sometimes use sub-contractors or other third parties as part of the HUBTIMIZE Services and/or HUBTIMIZE. When we do so, we will always remain responsible for all of our obligations under this Agreement.
- Agreement. Given the dynamic nature of our business and industry, we may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Agreement on the Site, posting a notice on the Site and/or the HUBTIMIZE App, or through other communications. Please review changes at the beginning of each calendar quarter and let us know by the end of that calendar quarter if any changes are not acceptable and you wish to terminate your relationship with us. Otherwise changes will become binding at the end of the calendar quarter following the change. If you don’t agree to be bound by the modified Agreement, then you will continue to be bound by any existing obligations under the agreement that was in place when you entered into an agreement for those services, however you will not be able to otherwise use HUBTIMIZE.
- HUBTIMIZE Services. As part of our efforts to continually improve the HUBTIMIZE Services, we may change or discontinue any part of the HUBTIMIZE Services at any time at our sole discretion. For example, we may remove a feature that users don’t use very often or add new features.
- User requested changes to the HUBTIMIZE Services. Customer requested changes to the HUBTIMIZE Services. When customers request changes to the HUBTIMIZE Services (e.g. new features in functionality), HUBTIMIZE may at its discretion offer to make these changes for free, for payment, or not at all. (This will typically depend whether HUBTIMIZE believes the changes are beneficial to other customers.) All new developments in the HUBTIMIZE Services, will be owned by HUBTIMIZE, and may be offered to other HUBTIMIZE users, even if one user is paying money towards the development cost, unless otherwise agreed in writing between HUBTIMIZE and that user.
- Accounts and Users :
- HUBTIMIZE User Registration : You must create an account to use certain features of the HUBTIMIZE Platform and HUBTIMIZE Services. You can register for an Account via the Site or the HUBTIMIZE App. From time to time we may also enable registration through your account with certain third-party services such as Linkedin, Facebook, Twitter and others (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. You agree that you won’t disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
- Intellectual Property :
- HUBTIMIZE IP : We’ve worked for months to develop our technology and we’re proud of it. Subject to your rights described in Section 5.2.2, we exclusively own all rights, title and interest in, and to any software, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by us in connection with provision of the HUBTIMIZE Services to you (collectively “HUBTIMIZE Materials”) as well as any text, data, images, information or other materials that are posted, generated, provided or otherwise made available by us through the HUBTIMIZE Platform (collectively “HUBTIMIZE Content”). Our rights expressly include all copyright rights, trade secret rights, know-how and any other intellectual property rights (“Intellectual Property Rights”) in the HUBTIMIZE Materials and the HUBTIMIZE Content. You have no rights in any HUBTIMIZE Materials or HUBTIMIZE Content except if granted to you in this Agreement. You also cannot record or otherwise access or make use of our data with automated programs, software, or any other method of screen scraping.
- User IP :
- User Content : You’ve been working hard too. Subject to this Section 5.2, you exclusively own all rights, title and interest in and to any text, data, images, information or other materials posted, generated, provided or otherwise made available by you through the HUBTIMIZE Platform, whether on a Custom Site or otherwise (collectively, “User Content”), including all Intellectual Property Rights in that User Content. You are solely responsible for the accuracy, quality, integrity, legality and reliability of all the User Content that you (or any Authorized User) submit to the HUBTIMIZE Platform. By making User Content available through the HUBTIMIZE Platform, you grant to HUBTIMIZE a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify your User Content in connection with operating the HUBTIMIZE Platform and providing the HUBTIMIZE Services.
- Anonymous Data and Reference Data. You grant us the right to use User Content (whether related to your activities as a Shipper or Logistics Provider) to generate anonymous, statistical data based on such User Content (for example, an average price calculated across multiple Users without naming those Users), which will not identify you (“Anonymous Data”), and to use such Anonymous Data in any manner in which we see fit, including selling such Anonymous Data. This Anonymous Data is not Confidential Information for purposes of this Agreement and is owned by HUBTIMIZE. Similarly, in order to improve the HUBTIMIZE Services for you and others, HUBTIMIZE may make use of reference data, which is by its nature is not confidential or proprietary.
- Trademark License : We’re proud to be doing business with you. We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “HUBTIMIZE” name and logo on your list of vendors or list of technologies you use. All goodwill associated with the use of such name and logo inures to the benefit of HUBTIMIZE. You grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to list your name and logo on HUBTIMIZE’ list of users (whether in a general user list or a list of users for a specific product, service or sector) and to publish your reviews. All goodwill associated with the use of your name and logo inures to your benefit.
- Data License : From time to time we may make available certain industry data such as indicative pricing data, whether through our Site or HUBTIMIZE APIs (“HUBTIMIZE Data”) or otherwise and in such event we may sell a non-exclusive, non-transferable, non-assignable, royalty-free license to you to copy and publish (but not modify) such HUBTIMIZE Data, subject to the terms and conditions of such license. Any HUBTIMIZE Data displayed on www.hubtimize.com or associated sites may be used by you provided that you clearly acknowledge HUBTIMIZE as the source of such data together with a prominent link to www.hubtimize.com with every copy of the HUBTIMIZE Data that you make, and also agree to fulfil any other HUBTIMIZE conditions communicated to you governing use of this HUBTIMIZE Data.
- Reservation of Rights : We reserve all rights in and to Intellectual Property Rights, Software, HUBTIMIZE Materials and HUBTIMIZE Content not expressly granted to you under this Agreement.
- Data Maintenance and Backup Procedures. We know how important your data is to you. We will use commercially reasonable efforts to store, secure, and backup your User Content, including selecting reputable infrastructure or platform providers. We will follow our standard storage, backup and archival procedures for all User Content submitted into the HUBTIMIZE Platform. In the event of any loss or corruption of User Content, we will use our commercially reasonable efforts to restore the lost or corrupted User Content from the latest backup of such User Content maintained by us. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF USER CONTENT CAUSED BY ANY THIRD PARTY. OUR EFFORTS TO RESTORE LOST OR CORRUPTED USER CONTENT PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF USER CONTENT IN CONNECTION WITH THE HUBTIMIZE SERVICES AND HUBTIMIZE PLATFORM.
- Buying Logistics Services :
- Quotes : If you’re looking to buy Logistics Services, you’ve come to the right place! You can use the HUBTIMIZE Platform to look for Logistics Providers and to request quotes and related terms for all your projects (“Quotes”). In addition to discovering new Logistics Providers, and obtaining Quotes, we add features from time to time to help you evaluate Users and manage your Quotes requests, Orders and other documents. If you are only using the HUBTIMIZE Services as a Shipper, you don’t need to pay to use the HUBTIMIZE Services, but of course you do need to pay for any Logistics Services that you buy from a Logistics Provider.
- Representations : If you are a Shipper, by using the HUBTIMIZE Services you represent to HUBTIMIZE and to Logistics Providers that you understand the way in which Logistics Services work and that you hold all the necessary permits to legally procure any Logistics Services that you buy.
- Accepting Quotes :
- Orders : When you accept a Quote, we create an “Order” on your behalf which is a legally binding agreement between you and the Logistics Provider who provided that Quote. Logistics Providers, not HUBTIMIZE, are responsible for honoring any Orders and performing the applicable Logistics Services. The identity of the Logistics Provider will be clearly marked on the Quote. As a Shipper, you agree to accept any terms, conditions, rules, and restrictions associated with such Logistics Services that are imposed by the Logistics Provider. You acknowledge and agree that you, and not HUBTIMIZE, will be responsible for performing the Shipper’s obligations of the Order and any other contracts with Logistics Providers.
- Grace Period : From time to time to improve the usability of the HUBTIMIZE Network, and in our absolute discretion, we may set a grace period of a specified duration (for example, 24 hours) after an Order is made (“Grace Period”), during which either you or the Logistics Provider may cancel the Order for any reason, and in the event of such a cancellation, you and the Logistics Provider will have no further responsibility to one another for the canceled Order. If a Grace Period applies, we will state this clearly at the time that the Order is made.
- HUBTIMIZE is Not a Logistics Provider. We help you find Quotes from Logistics Providers, but we are not a Logistics Provider and we don’t provide Logistics Services. Logistics Providers are not agents, contractors, or otherwise affiliated entities of HUBTIMIZE. We don’t endorse any Logistics Providers, and we don’t in any way supervise, direct or control a Logistics Provider’s performance of Logistics Services, nor do we warrant that any Logistics Provider will meet your expectations in performing Logistics Services nor do we guarantee specific service levels. We are not obliged to conduct background checks on any Logistics Provider, but we might do so on a discretionary basis (and have removed Logistics Providers from HUBTIMIZE when deemed appropriate). In order to assist you, we publish reviews of Logistics Providers or vet particular Logistics Providers from time to time, but we don’t guarantee the accuracy of any reviews and warn you that reviews can be misleading. Your access to and use of the HUBTIMIZE Services is at your own risk and we encourage you to do you your own research and due diligence on any Logistics Provider with which you may engage through an Order, just like you would if you found a Logistics Provider outside of the HUBTIMIZE Platform. We do act as collection agent for Logistics Providers so if you have purchased freight from a Logistics Provider, HUBTIMIZE will have been authorized by the Logistics Provider to collect payment and you agree that if you fail to make payment due, Logistics Provider and/or HUBTIMIZE as their agent will have the right to detain release of a cargo shipped under the HUBTIMIZE Platform until the freight is paid in full.
- Disputes with Logistics Providers. We encourage you to communicate directly with Logistics Providers regarding any Orders that you make (whether using communication tools on the HUBTIMIZE Platform or offline). If you have any concerns about any Order, you should try to resolve your concerns directly with the Logistics Provider in question. If you are not able to resolve your concerns with the relevant Logistics Provider, you can make a formal complaint to us and we will address such complaint as we consider appropriate under the circumstances. By using HUBTIMIZE, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Logistics Providers or other third parties will be limited to a claim against the particular Logistics Providers or other third parties who caused you harm, and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
- Shipper Payment Terms :
- HUBTIMIZE as Payment Agent : You agree to pay the Logistics Provider for the Logistics Services associated with an Order. We act as the payment agent of the Logistics Provider (also known as agent of the payee). This means that we collect money from you on behalf of the Logistics Provider, which we then pass on to the Logistics Provider. At our discretion, we may request in respect of a particular Order that you pay the Logistics Provider directly, but any such Order remains an Order made through the HUBTIMIZE Platform. We have our own policies and practices as to how and where we collect money from you and how we pass that money on to the Logistics Provider. Due to the complexities of our industry, policies and practices may vary depending on factors such as geography, volume and type of Logistics Services, Shipper’s track record, and Logistics Provider’s track record. For example, payment may or may not be required at the time of making an Order, or we may accept part payment at the time of making an Order with the balance being required at a later time, such as prior to releasing the cargo from the destination country’s customs. The terms of the payment policy applying to your Order will be presented to you at the time of making the Order and there may be further guidelines published from time to time in the Logistics Provider’s SOP and Shippers Terms and Conditions.
- Quotes : You agree to pay the amounts presented to you in a Quote for an Order you make with a Logistics Provider, and any other amounts that you owe to the Logistics Provider in connection with an Order. You also agree to provide any documentation reasonably requested by a Logistics Provider for the purposes of your Order and you are responsible for the accuracy and timely submission of such documentation to the Logistics Provider, whether that occurs through the HUBTIMIZE Platform or otherwise. We will use reasonable efforts to ensure that Quotes displayed on the HUBTIMIZE Platform are all-inclusive. However, as we have already explained, each Logistics Provider has its own terms and conditions of sale which will apply to any Order you make with that Logistics Provider, and you may be charged an amount that is additional to the amount of the Quote in certain circumstances. For example, if the Logistics Provider’s truck waits hours for your cargo, or your cargo weighs more than you declared, you will incur extra charges in addition to what appeared in the relevant Quote, as determined by the Logistics Provider’s SOP and Logistics Provider’s terms and conditions. Similarly most Logistics Providers will disclaim liability for delays caused by force majeure events including weather and strikes.
- Insurance, Customs Brokerage and Import Duties : Unless specifically stated, freight insurance and customs brokerage charges are not included in a Quote for Logistics Services. Import duties you may have to pay to the destination government are never included unless the Quote explicitly states Delivery Duty Paid (DDP).
- Changes to Payment Policies: In our continued effort to improve the HUBTIMIZE Services, we reserve the right to make changes to our payment policies and practices at any time, for any reason and without advance notice to you. We will always make the current payment policy and practice clear at the time of making an Order. We may sometimes at our discretion offer different payment options such as the ability to pay in different currencies or through different payment mechanisms. We may also offer certain Shippers credit to make a payment at a later date. We reserve the right to charge extra fees for these arrangements (“Processing Fees”) and if you select these services, your payment obligation with respect to such Processing Fees is directly to HUBTIMIZE and you agree to pay these Processing Fees to HUBTIMIZE.
- E-commerce Services: If you are an E-commerce Provider and you make Quotes available to your users through your e-commerce platform (for example, in the “shipping” section of your shopping cart functionality), you function as a Shipper of the Logistics Services for the purposes of this Agreement and all of the terms of this Agreement that apply specifically to Shippers, including all the terms of this Section 6, apply to you.
- Selling Logistics Services :
- Where You Can Sell : If you sell Logistics Services, you’ve come to the right place! You can use the HUBTIMIZE Platform to sell your Logistics Services to Shippers introduced by HUBTIMIZE.
- Representations : If you are a Logistics Provider, by using the HUBTIMIZE Services you represent to HUBTIMIZE and to Shippers that you understand the way in which Logistics Services work and that you hold all necessary permits, licenses, knowledge and experience to offer the Logistics Services that you provide. You also understand that given the nature of the business and in order to be in compliance with applicable laws and regulations we may be required from time to time to request that you provide us with data about your company or shipments which we reasonably require for compliance and financial purposes and you agree that continued sales on the site may be subject to receipt of the requested data.
- Reselling : Businesses which are both Shippers and Logistics Providers may configure the HUBTIMIZE Platform to automatically search for Quotes which are available for them to Buy, markup the prices in those Quotes, and use that in creating a Quote which they offer to Sell (“Reselling”). Often the resold Logistics Services will be combined with broader Logistics Services.
- As a Logistics Provider you agree that any Shipper who you permit to see your Quotes through the HUBTIMIZE Network may engage in Reselling, that is may use the HUBTIMIZE Platform to create Quotes which are based, or partly based, on the prices in your Quote, plus an optional (positive or negative) markup. Although they use your price in Quoting, should they secure the Order they are not obliged to order the relevant part of the Logistics Service from you. Of course, you may also Resell Logistics Services offered to you by other Logistics Providers, and use that to increase the range of Logistics Services you offer for Selling (for example you can use Reselling to offer Logistics Services on new lanes and modes, or extending a port-to-port offering to door-to-door). Please remember that when you Resell you are entering into two bilateral agreements with the Logistics Provider who is supplying you and with the Shipper you Sell to, and HUBTIMIZE is a party to neither agreement.
- HUBTIMIZE acts as a facilitator of trade between Shippers and Logistics Providers, and in this capacity HUBTIMIZE provides you with the following services and also acts as your collection Agent :
- HUBTIMIZE will :
- Automate generation of your price quotes based on the information (for example, tariffs) you provide through your use of the HUBTIMIZE Platform ;
- Advertise and promote your Logistics Services on the HUBTIMIZE Platform, subject to the configuration options you choose ;
- Facilitate some communication or document exchange between you and the Shipper ;
- Act as your Collection Agent to collect payment from Shippers on your behalf (also known as agent for payee). By accepting this Agreement you appoint us as your limited agent just for the purposes of collection. Once we collect payment due, you agree that you have no claims against Shipper for such payment. Contract with Shipper : If a Shipper engages you for provision of Logistics Services by making an Order, the Order agreement and any subsequent agreement that you enter into with the Shipper will be between you and the Shipper only. We don’t act as your insurer, broker, contracting agent or another representative. You acknowledge and agree that you, and not HUBTIMIZE, are and will be responsible for providing the Logistics Services and performing your other obligations under of any agreements with Shippers, and we are not a party to such agreements and disclaim all liability arising from or related to such agreements. That said, in order to help us collect payment on your behalf, you agree upon our request to hold off releasing cargo to a Shipper if the Shipper has not fulfilled its payment obligations.
- Occasionally we may need your help collecting from a Shipper. We may request and you agree that a shipment purchased through HUBTIMIZE not be released so long as the Shipper of that shipment owes money to any Logistics Provider.
- Logistics Provider is fully and solely responsible for determining the correct VAT/tax consequences of the invoice for Logistics Services.
- No Endorsement of Shippers : We don’t endorse any Shippers. We are not obliged to conduct background checks on any Shipper, but we might do so on a discretionary basis and we may vet particular Shippers from time to time. Your access to and use of HUBTIMIZE and the HUBTIMIZE Services is at your own risk and we encourage you to do your own research and due diligence on any Shipper with which you may engage through an Order, just like you would if you found a Shipper outside of HUBTIMIZE.
- No Endorsement of Logistics Providers : We don’t endorse any Logistics Providers or Logistics Services, and using the HUBTIMIZE Services does not mean that you or your Logistics Services are endorsed in any way by us. We don’t necessarily conduct background checks on any Logistics Provider, but we reserve the right to do so on a discretionary basis and you agree to cooperate with us and to provide us with all information we request from you in the event that we decide to conduct a background check on you as well as accurate information for us to place in your profile in the HUBTIMIZE Platform. You are not an agent, contractor, employee or affiliated entity of HUBTIMIZE and we do not in any way supervise, direct or control your performance of Logistics Services.
- Subagent : In order for HUBTIMIZE to find more users for you, you authorize HUBTIMIZE to appoint sub-agents who may also market the Quotes that are generated for your Logistics Services via HUBTIMIZE.
- Disputes with Shippers. Disputes with Shippers shall be governed by the relevant provisions in the Logistics Provider’s SOP. By using HUBTIMIZE, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Shippers or other third parties will be limited to a claim against the particular Shippers or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
- Logistics Provider Fees :
- Quote and Applicable Terms : You agree that the price that a Shipper will pay for your Logistics Services is the amount specified in the Quote selected by the Shipper. Although the Quotes are generated through HUBTIMIZE, they are still your Quotes and you are bound by the Quote which is selected by the Shipper. It is your obligation to ensure the accuracy and currency of tariffs, data and other User Content provided to us through HUBTIMIZE, which is used to generate Quotes. We encourage you to regularly check and test this aspect of your use the Logistics Services to ensure that details such as prices, transit time and terms and conditions are displayed correctly and that the Quotes generated by HUBTIMIZE on your behalf for your Logistics Services are accurate and meet your requirements.
- Remittance of Funds : We will charge you a marketing success fee for each Order made with you by a Shipper (a “Logistics Provider Fee”). Logistics Provider Fees are described in the HUBTIMIZE Price List. We reserve the right to change the Logistics Provider Fees from time to time but we will notify you of any changes in advance of their implementation. We will invoice you for the Logistics Provider Fees and either (i) deduct the Logistics Provider Fees from the payments made by Shippers collected by us on your behalf before remitting funds to you, in which case you authorize us to make such deduction, or (ii) in case we don’t make such deduction you agree to pay the Logistics Provider Fees within thirty days of the date of an invoice we send you.
- Payment Policies : We aim to have our Logistics Providers paid in a timely and convenient manner. We have our own policies and practices as to how and when we collect money from Shippers and how we pass that money on to you, and under what circumstances (if any) we guarantee payment to you if a Shipper doesn’t pay us. We reserve the right to make changes to our payment policies and practices at any time and for any reason, but we will notify you of any changes by email and/or posting to the HUBTIMIZE Platform.
- Non-Circumvention. We’ve worked hard to develop HUBTIMIZE and we have invested and continue to invest a lot of time and money in connecting you with Shippers. When a specific Shipper makes an Order with you through HUBTIMIZE (“Initial Order”) for Logistics Services, Logistics Provider and Shipper both agree that for at least twelve (12) months Logistics Provider will not not target or directly sell Logistics Services to Shippers introduced through HUBTIMIZE for 12 months from the introduction of such Shipper and Shippers shall not deal directly with Logistics Provider introduced through HUBTIMIZE. (“Non-circumvention”). We reserve the right to charge you Logistics Providers and Platform Fees, to terminate or suspend your Account, to terminate or suspend your access to the Services or to do any combination of the foregoing in respect of any breach of this Section by you. Non-circumvention will not apply if the same Shipper had ordered services from Logistics Provider’s organization in the six months prior to the Initial Order. Non-circumvention will also not apply if a different part of Logistics Provider’s organization sells to the Shipper coincidentally, without being aware of any Order from that Shipper that came through HUBTIMIZE, or if the sale is the result of a general solicitation which would have occurred irrespective of whether Logistics Provider and Shipper were previously introduced by HUBTIMIZE. Non-circumvention will not apply with respect to selling services which are not offered through HUBTIMIZE.
- Statements of Work :
- Engagement : If you want to engage HUBTIMIZE to perform Data Services, we’ll prepare a statement of work or purchase order that describes specific Data Services to be performed for you by us, that we both sign (any such document is called a “Statement of Work”). Each Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained in this Agreement.
- Designated Contacts : We will each designate in the Statement of Work one or more individuals who will serve as the point(s) of contact between us for all matters relating to the Data Services to be performed under that Statement of Work and we may change the designated contacts from time to time.
- Data Services Payment Terms :
- Data Services Fees : You will pay us fees for our performance of Data Services, either according to the HUBTIMIZE Price List, if you have chosen a standard Data Services package listed there, or calculated in accordance with the terms set out in the applicable Statement of Work.
- Payment Terms : Unless otherwise agreed, we will invoice you on or after the last day of a calendar quarter (or on another schedule otherwise agreed with you) for all applicable fees for the Data Services performed in that calendar quarter. You agree to pay all invoices within 21 days of the date of the invoice.
- Responsibility :
- Disclaimer : We will use commercially reasonable efforts to provide the Data Services in a timely manner and free of errors. However, you are responsible for the data that you provide to us both before and after it has been processed through Data Services. You must check the accuracy of your data after engaging Data Services. For example, if we convert and import a freight tariff for you, you should check that the resulting Quotes or rates are accurate. We expressly disclaim any and all liability arising from or related to any errors in data that occur as a result of our provision of Data Services.
- Protection of Data : All data you provide in the context of Data Services is User Content for the purposes of this Agreement. However, HUBTIMIZE will retain ownership of any reusable templates we create which do not contain any pricing information, including templates for reading the structure of carrier-specific tariffs, or templates for reading and writing shipper-specific tenders, and carrier surcharges which are not user specific (“Template Data”). Template Data is not User Content.
- Confidential Information. “Confidential Information” means: (i) HUBTIMIZE Materials and HUBTIMIZE Content; (ii) User Content; (iii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
- Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure. In addition, if a company sets up a Business Account and associates Authorized Users’ Accounts with the Business Account as contemplated in Section 5.1, User Content will be accessible by all associated Account holders via the HUBTIMIZE Platform and HUBTIMIZE Services, subject to the HUBTIMIZE Platform settings created by the Business Account holder. Similarly data may be shared between linked Business Accounts of affiliated businesses.
- Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
- Order Details. Not everything has to be secret, right? Please remember that inter-business documents which are used for business purposes such as Quotes, Orders, Invoices and Receipts and relevant communications will be shared between the applicable Shippers and Logistics Providers as part of the functionality of the HUBTIMIZE Services.
- Acceptable Use. You agree not to do any of the following in connection with your use of the HUBTIMIZE Services:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the HUBTIMIZE platform or any individual element within HUBTIMIZE, HUBTIMIZE’ name, any HUBTIMIZE trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;
- Access, tamper with, or use non-public areas of the HUBTIMIZE Platform or HUBTIMIZE computer systems;
- Attempt to probe, scan or test the vulnerability of any HUBTIMIZE system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HUBTIMIZE or any of HUBTIMIZE’ providers or any other third party (including another user) to protect HUBTIMIZE or HUBTIMIZE Content;
- Attempt to access or search HUBTIMIZE, HUBTIMIZE Content or User Content, or download HUBTIMIZE Content or User Content from HUBTIMIZE through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by HUBTIMIZE or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing HUBTIMIZE;
- Collect or store any personally identifiable information from HUBTIMIZE or regarding other users of the HUBTIMIZE Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
- Our Enforcement Rights. Although we’re not obligated to monitor access to or use of HUBTIMIZE or to review or edit any User Content, we have the right to do so for the purpose of operating the HUBTIMIZE Platform, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements, or to improve the user experience. We reserve the right but are not obligated to remove or disable access to any User Content, or any Account, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects HUBTIMIZE. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may also use third parties, including collection agents, to help us enforce this Agreement.
- Compliance. We comply with all applicable laws and expect HUBTIMIZE Shippers and Logistics Providers to do the same. By entering into this agreement you undertake to comply with all applicable laws, rules, and regulations, including without limitation sanctions, anti-corruption, anti-money laundering, and tax laws in your performance of this Agreement.
HUBTIMIZE respects copyright law and expects its users to do the same. It is our policy to terminate in appropriate circumstances Account holders and users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
If you’re a Logistics Provider, SaaS Subscriber or E-commerce Provider, during the term of this Agreement and for one year following termination, you will maintain complete and accurate books and records regarding your use of HUBTIMIZE Services. During this time, we have the right to inspect and audit such books and records for the purpose of confirming your compliance with the terms of this Agreement. Any audit will be conducted by a reputable firm of certified public accountants during regular business hours and in a manner that minimizes interference with your normal business activities. Don’t worry – we won’t examine records relating to your business generally, independent of your use of the HUBTIMIZE Services. If we discover any payment error in the audit, the party in whose favor the error was made will pay the other the amount of the error. We will pay for the audit unless the audit uncovers payment errors in our favor of five percent (5%) or more of the total amount of Logistics Provider Fees or SaaS Subscription Fees paid by you to us under this Agreement. In this case, you must pay for the cost of the audit and all our related expenses.
- Term. This Agreement will commence when you accept its terms, and unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as we are providing HUBTIMIZE Services to you.
- Termination of Accounts. We may terminate your access to and use of the HUBTIMIZE Platform, including your Business Account or Account, at our sole discretion, upon 90 days notice. However, given the importance of maintaining the integrity of our platform for all users, if we have reason to suspect abuse or a substantial breach of this agreement, we may terminate your Account at any time at our sole discretion and will only provide notice if we feel it is reasonable and feasible to do so.
- Effect of Termination. Upon the expiration or termination of this Agreement, you will no longer be able to access and use HUBTIMIZE or HUBTIMIZE Services and each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control.
- Orders that are Still in Process. If you are a Logistics Provider, in the event that upon the expiration or termination of this Agreement, a Shipper has a copy of a valid unexpired Quote from you, and wishes to place an Order, or the performance of Logistics Services under an Order made through the HUBTIMIZE Platform is ongoing, the expiration or termination of this Agreement will not affect the terms of such Quote or Order. Logistics Providers are obligated and agree to carry out the Logistics Services specified in such Order to completion in accordance with the terms of the agreement between the Logistics Provider and Shipper for the Order in question and Shippers are obligated and agree to fulfil their obligations under such Order, including payment obligations to us.
- Survival. The rights and obligations of the parties contained in the following Sections will survive termination of this Agreement or any Statement of Work : 5.2 (Intellectual Property); 5.3 (Data Maintenance and Backup Procedures) ; 6.3(a) (SaaS Subscriber User Portal) ; 7.4 (Disputes with Logistics Providers) ; 8.3 (Disputes with Shippers) ; 8.5 (Non-Circumvention) ; 9.3(a) (Data Services Disclaimer) ; 10 (Mutual Non-Disclosure Agreement) ; 11.2 (Our Enforcement Rights) ; 13 (Audit) ; 14(c) (Effect of Termination) ; 14(d) (Orders that are Still in Process) ; 14(e) (Survival) ; 15 (Warranties) ; 16 (Indemnity) and 17 (Limitation of Liability).
THE HUBTIMIZE PLATFORM AND HUBTIMIZE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT USING HUBTIMIZE OR HUBTIMIZE SERVICES WILL RESULT IN HIGHER NUMBERS OF USERS OR INCREASED REVENUE FOR YOU OR YOUR BUSINESS. WE MAKE NO WARRANTY THAT THE HUBTIMIZE PLATFORM OR HUBTIMIZE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
You will indemnify, defend and hold HUBTIMIZE and its officers, directors, employee, and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of HUBTIMIZE or HUBTIMIZE Services, (ii) the use of any of your Authorized Users of HUBTIMIZE or HUBTIMIZE Services (if applicable), (iii) your User Content, or (iv) your violation of this Agreement.
NEITHER HUBTIMIZE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE HUBTIMIZE SERVICES OR HUBTIMIZE PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE HUBTIMIZE SERVICES OR HUBTIMIZE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HUBTIMIZE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION WILL APPLY TO YOU TO THE DEGREE ALLOWED BY LAW.
IN NO EVENT WILL HUBTIMIZE’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE HUBTIMIZE SERVICES OR HUBTIMIZE PLATFORM EXCEED THE AMOUNTS YOU HAVE PAID TO HUBTIMIZE FOR USE OF THE HUBTIMIZE SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE COMMERCIAL AGREEMENT BETWEEN HUBTIMIZE AND YOU.
- Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. We may assign or transfer this Agreement without restriction or your consent to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
- No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of Douala (Cameroon), excluding its body of law controlling conflict of laws. Any disputes will be resolved exclusively by binding arbitration in Douala.
- Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- Notices. Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement, will be given : (i) via email ; or (ii) by posting to the HUBTIMIZE Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to HUBTIMIZE should be sent to [email protected].
- Waiver. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.
- Language. This Agreement may be translated from time to time for your convenience, but the English language version of the Agreement is the binding version.