Oji Fibre Solutions (NZ) Limited trading as eCargo (“eCargo”) agrees to supply and the customer (“Customer”) agrees to accept the freight management services (as updated or modified from time to time) made available by eCargo via its website and/or a client application (“Services”) on the following terms and conditions (“Terms”).
eCargo may change the Terms from time to time and will notify the Customer of such changes.
By registering to use the Services, the Customer acknowledges that it has read and understood these Terms and that it is bound by the actions of any person using the Services on its behalf.
Charges and Payments
The Customer will be responsible for paying any charges associated with using the Services (“Charges”) unless an alternative arrangement has been agreed. Unless the Charges are set out in a schedule agreed between eCargo and the Customer, the Charges will be $50 per month per user login. eCargo is entitled to charge the Customer additional fees including where there is an increased volume or number of transactions and/or business sites or where there is a requirement for EDI.
eCargo may alter the Charges from time to time on 30 days’ notice to the Customer.
The Customer will pay any Charges due within 30 days of the date of invoice.
Responsibilities of the Parties
eCargo grants the Customer the right to permit users to access and use the Services, provided that the Customer shall remain solely responsible for such access and use.
The Customer must ensure that all usernames and passwords required to access the Services are kept secure and confidential. The Customer must take all other actions that eCargo deems necessary to maintain or enhance the security of eCargo’s computing systems and their access to the Services.
Use of the Services may be subject to limitations, including but not limited to monthly transaction volumes, user logins and the number of calls the Customer is permitted to make against eCargo’s helpdesk. Any such limitations will be notified by eCargo to the Customer from time to time.
eCargo may terminate or suspend all or some of the Services immediately on notice to the Customer for any reason, including where the Customer has breached these Terms.
Neither party will, without the prior written approval of the other party, make public or disclose to any person any of the other party’s confidential information.
Intellectual Property Rights
All patents, designs, trademarks, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (“Intellectual Property”) existing or arising in relation to the provision of Services under this Agreement shall belong to eCargo.
The Customer agrees not to infringe eCargo’s Intellectual Property and not to reproduce, duplicate, copy, sell, resell, modify or exploit any part of the Services without eCargo’s consent.
Any data inputted by the Customer as a result of using the Services (“Data”) shall remain the Customer’s property. The Customer’s right to access Data is subject to the payment of all Charges when due.
All representations and warranties (except those which may not lawfully be excluded) are expressly excluded, including, without limitation, any warranty about the reliability, security or quality of the Services and the implied warranties of merchantability and fitness for any particular purpose. The foregoing exclusions do not apply to rights granted to the Customer under the Consumer Guarantees Act 1993 unless the Customer is acquiring the System and the Services for the purposes of a business in which case the parties agree the provisions of the Consumer Guarantees Act 1993 are excluded and do not apply to the provision of the Services under this Agreement.
Limitation of Liability
eCargo will under no circumstances be liable for any for any economic or financial loss including any loss of production, loss of profits, loss of anticipated savings, loss of business, or any indirect, consequential, or exemplary damages, or personal injury, however caused, arising out of or in connection with the performance or non-performance of the Services or these Terms.
Notwithstanding anything else in the Terms, eCargo’s liability to the Customer arising out of any claim for damages for any cause whatsoever will under no circumstances exceed the total amount of the sums actually paid to eCargo for the Services for the 12-month period prior to the date of the claim.
eCargo shall not be liable for any failure or delay in complying with an obligation under these Terms as a result of act of God, earthquake, extreme weather conditions, fire, explosion, war, act of terrorism, embargo, strike, governmental or court restraint or order or any other matter beyond eCargo’s control.
No waiver by any party of any term or right under this agreement will be of any legal effect until in writing and signed by the parties. No delay, neglect or forbearance by either party in enforcing against the other any provision of these Terms will be a waiver, or in any way prejudice any right, of that party.
If any provision of these Terms is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of these Terms will remain in full force and effect.
The parties acknowledge that these Terms, together with any schedule agreed between eCargo and the Customer (where applicable), contains the entire agreement between the parties in connection with the subject matter hereof. There are no conditions, warranties or other understandings affecting the arrangements between the parties other than those set out herein and these Terms replace all prior negotiations, agreements, understandings, and representations, whether oral or written, between the parties with respect to the subject matter of these Terms.
The construction, interpretation and performance of these Terms shall be governed and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.