Terms and Conditions

Dear user,

Mycargo Limited, its parent, subsidiaries and affiliates, as applicable (collectively, “ Mycargo” or “ we” or “ us” or “ our”), appreciate your business, visit to, and use of our mobile application and related website(s) (collectively, the “ Platform”). The Platform is a medium comprising content, products and services (collectively, the “ Services“) which enable Cargo Service Providers (as defined below) and Clients (as defined below) (collectively, the “ user” or “ users” or “ you” or “ your”) to ship or transport a variety of goods (“Cargo”): (i) on behalf of Clients, for a fee; or (ii) on their own behalf; or (iii) on behalf of third parties, as applicable.

I. Contractual Relationship

These Terms of Use (the “ Terms” or the “ Agreement”) govern your access to, and use of, the Services made available by us on the Platform.

In these Terms, the words “including” and “include” mean “including, but not limited to.”

By accessing and using the Platform and/or using our Services, you are agreeing to be bound by the following Terms without modification, limitation or qualification. These Terms expressly supersede prior agreements or arrangements with you. Please read them carefully. Please also note that we may, at our sole discretion, modify or revise these Terms at any time by updating the text of this page without notice to you, and you are bound by any such modification or revision. You should therefore visit this page periodically to review the Terms. Your continued access, use or browsing on the Platform following the posting of changes to the Terms, means you accept those modifications or revisions.

Mycargo may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason or no reason at all.

Supplemental terms may apply to certain Services, such as policies for a particular type of Cargo, and such supplemental terms will be disclosed to you in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). They are hereby incorporated by reference into these Terms, and become part of your agreement with us if you use the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Platform on your personal device or computer or other device, solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal noncommercial and/or permitted commercial use. Any rights not expressly granted herein are reserved by us and our licensors.

In addition to the use specified herein, the Terms found here apply to any software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with our Services (the “ Platform Software”) and terms of the software license agreement accompanying such Platform Software (the “ License Agreement“), and is further conditioned on your agreement to be bound by the terms of the License Agreement.

Please note that any unauthorized use of the Platform automatically terminates the permission or license granted to use the Platform.

We are not responsible for the performance of Cargo Service Providers nor do we have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever relating to user connection nor of the integrity, responsibility or any of the actions or omissions whatsoever of any users. We do not have control over the quality, timing or legality of services delivered by Cargo Service Providers. We make no representations about the suitability, reliability, timeliness, or accuracy of the services provided by Cargo Service Providers identified through the Services whether in public, private, or offline interactions.

II. Privacy

We consider the privacy and protection of all our users to be paramount. Please review our Privacy Policy, which governs your visit to our Platform and your use of our Services, to understand our practices and policies.

III. Your Use of the Service

A. User Account User

In order to use most aspects of the Services, you must register for and maintain an active personal or professional, as applicable, user Services account (“ Account“). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, may result in your inability to access and use the Services or Mycargo’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by us in writing, you may only possess one Account.

B. Services Provided By US

As a user of the Platform you shall have access to the following Services:

(i) Cargo Service Provider Users. Individuals or entities that shall provide Cargo transportation and/or services to Clients (collectively, the “ Cargo Service Providers”) shall have access to the following Services on the Platform:

1.Add/Delete/Change details of transport resources: truck(s) and driver(s)\

2.Ability to make bids on all available shipment listings and get an indication of the number of other competing bids

3.See the status of their bids, trucks and drivers and track their shipments

4.Receive status changes and exception alert notifications

5.Receive / Generate post trip, earnings and other relevant KPI reports

(ii) Client Users. Individuals or entities using the Platform to access Cargo Service Providers (collectively, “ Clients”) shall have access to the following Services on the Platform:

1.Ability to create/edit/delete shipment listing(s)

2.Ability to select transporter engagement options (contract, auction and spot procurement)

3.Post shipment listing(s) for auction, see bidder equipment and average ratings and select preffered bidder

4.Make payments using various options including MPESA, directly through MYCARGO portal

5.Receive status changes and exception alert notifications

6.See the status of their listings and track active shipments

7.Rate quality of service provider

8.Receive / Generate post trip reports

 C. Requirements and Conduct

By using the Platform or Services, you expressly represent and warrant that:

(i) You are legally entitled to enter this Agreement. If you reside in a jurisdiction that restricts the use of the Services because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Platform and Services.

(ii) You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. Your participation in using the Services and/or Platform is for your sole, personal use or if you are a Cargo Service Providers, your professional use. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user Account to any other person or entity.

(iii) You agree to comply with all applicable laws from your home nation, the country, state and city in which you are present while using the Platform or Service.

(iv) You will only use the Services or the Platform for lawful purposes; you will not use the Services for sending or storing any unlawful Cargo, material or for fraudulent purposes.

(v) You will not use the Services or Platform in a manner as to cause nuisance, annoyance or inconvenience.

(vi) You will not impair the proper operation of the network.

(vii) You will not try to harm the Services or the Platform in any way whatsoever.

(viii) You will not copy, or distribute the Platform or other content without written permission from us.

(ix) You will only use the Platform and Services for your own use and will not resell it to a third party.

(x) You will keep secure and confidential your Account password or any identification we provide you which allows access to the Services.

(xi) You will provide us with whatever proof of identity we may reasonably request.

D. Text Messaging

By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from us at any time by texting the word STOP to [n] from the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.

E. Promotional Codes

We may, in our sole discretion, create promotional codes that may be redeemed for product credit, or other features or benefits related to the Services and/or a third party provider’s services, subject to any additional terms that we establish on a per promotional code basis (“ Promotional Codes“). You agree that Promotional Codes: (i) must be used for the intended use and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promotional Code; (v) are not valid for cash; and (vi) may expire prior to your use thereof. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promotional Codes by you or any other user in the event that we determine or believe that the use or redemption of the Promotional Code was in error, fraudulent, illegal, or in violation of the applicable Promotional Code terms or these Terms.

F. Network Access and Devices

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and the Platform and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

G. Third Party Interactions

During use of the Platform and Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Platform or Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Mycargo and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third party. Mycargo does not endorse any sites on the Internet that are linked through the Services or Platform, and in no event shall we or our licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. We provide the Platform and Services to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and we disclaim any and all responsibility or liability arising from such agreements between you and the third party providers. We may compile and release information regarding you and your use of the Platform or Services on an anonymous basis as part of a user profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.

IV. Intellectual Property

(A) Copyright Notice

All content and software included on or used in the Platform is the property of Mycargo or its content or software suppliers, as the case may be, and is protected by Kenyan, [United States] and international copyright laws. The compilation of all content on the Platform is the exclusive property of Mycargo and is protected by United States and international copyright laws. © 2017, Mycargo Limited, Nairobi, Kenya – All Rights Reserved.

(B) Trademark Notice

All marks on our Platform including, but not limited to, Mycargo, are registered trademarks of ours in [Kenya], the United States and other countries. Mycargo and its related graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through Mycargo Services and the Platform, are trademarks or trade dress of ours in [Kenya], the United States and other countries. Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All other trademarks not owned by us that appear on the Platform are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.

(C) Copyright & Trademark Complaints Notice

We respect the intellectual property rights of others, and require all users of our Platform and Services to respect ours as well. If you believe that your work has been copied in a way that constitutes copyright or other intellectual property infringement, please report your alleged infringement as soon as possible, to Mycargo’s Copyright Agent: Thomson Gabriele & Ollunga LLP at info@thomsongabriele.com.

(D) Restrictions

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Platform or Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Platform or Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Platform or Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Platform or Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform or Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Platform or Services or related systems or networks thereto.

(E) Ownership

The Platform and the Services and all rights therein are and shall remain our property or the property of our licensors. Neither these Terms nor your use of the Platform and the Services convey or grant to you any rights: (i) in or related to the Platform and/or the Services except for the limited license granted above; or (ii) to use or reference in any manner Mycargo’s company names, logos, product and service names, trademarks or services marks or those of our licensors.

(F) Unlawful Activity

We reserve the right to investigate complaints or reported violations of the Terms and to take any action we deem appropriate including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses, traffic information and shipped or transported Cargo.

IV. Disclaimer of Warranties and Limitation of Liability

OUR SERVICES AND ALL INFORMATION, CONTENT (INCLUDING OUR SOFTWARE OR ANY OTHER SOFTWARE), MATERIALS, PRODUCTS AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE PLATFORM, OR THE INFORMATION, CONTENT (INCLUDING OUR SOFTWARE OR ANY OTHER SOFTWARE), MATERIALS, SERVICES OR OTHER PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, BY US OR CARGO SERVICE PROVIDERS OR BY ANY CLIENT UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK.

TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE PLATFORM, INFORMATION, CONTENT (INCLUDING OUR SOFTWARE OR ANY OTHER SOFTWARE), MATERIALS, SERVICES OR OTHER PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, OUR SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM US ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE PLATFORM AND ANY OF OUR SERVICES, OR FROM ANY INFORMATION, CONTENT (INCLUDING OUR SOFTWARE OR ANY OTHER SOFTWARE), MATERIALS OR OTHER PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH OUR PLATFORM, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

V. Disclaimers of Certain Damages

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM, OR WITH ANY PROVISION OF THE AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO ANY USER OR ANY THIRD PARTY ON ACCOUNT OF THAT USER’S USE OF THE PLATFORM. IN NO EVENT SHALL WE AND/OR OUR SUPPLIERS BE LIABLE TO YOU OR ANY SUCH THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE PLATFORM, THE DELAY OR INABILITY TO USE THE PLATFORM, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES (INCLUDING OUR SOFTWARE OR ANY OTHER SOFTWARE), OR FOR ANY INFORMATION, CONTENT, MATERIALS, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE PLATFORM AS PROVIDED BY US, CARGO SERVICE PROVIDERS OR ANY CLIENT, OR OTHERWISE ARISING OUT OF THE USE OF THE PLATFORM, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 VI. Electronic Communications

When you visit our Platform, use or purchase any of our Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Platform. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

VII. Indemnity 

To the extent authorized by applicable law, you agree to defend, indemnify and hold us, our officers, directors, employees and agents, harmless against any and all claims, demands, damages, losses, liabilities and costs, including, without limitation, reasonable legal, expert and accounting fees, incurred by us in connect with any claims, actions or demands alleging or resulting from your use of the contents (including our software) of the Platform, your direct or indirect breach of these Terms, or your violation of law or of the rights of any third party.

VIII. Export Control of Software and Technical Data

The following applies with respect to our software and other content of a technical nature that you may obtain from the Platform. The United States controls the export of such intellectual property. You agree to comply with such restrictions and not to export or re-export the content (including our software) to countries or persons prohibited under the export control laws. By downloading the content (including our software), you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department’s Table of Denial Orders or the U.S. Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the software and/or other content.

IX. General

 A. Termination

These Terms are, and are intended to be, a continuing agreement and shall remain in full force and effect. We may, in our sole discretion, terminate, change, suspend, disable, add to or discontinue any aspect of the Platform, its Terms and Services at any time, and without liability to any user. We may restrict, suspend or terminate your use of or access to the Platform and the Services if we believe you are in breach of or are attempting to breach the Terms or applicable law, or for any other reason without notice or liability (including, for example, if we learn that you have provided us with false or misleading information, or interfered with other users or the administration of our Platform and the Services).

In the event of the termination of the Terms for any reason: (i) the license granted to you in the Terms will immediately terminate; and (ii) you must immediately cease all use of the Platform and destroy or erase all copies of the Platform in your possession or control. All of the sections of the Terms will survive any termination of the Terms. Any use of the Platform after termination is unlicensed and is in violation of the copyright and other rights of Mycargo. Mycargo and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in their sole discretion.

B. Local Standards

We do not represent that materials on the Platform are appropriate for use in all locations. Persons who choose to access the Platform do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

C. No Waiver

Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance.

 D. Severability

Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Terms shall remain in full force and effect.

 E. Governing Law; Forum and Jurisdiction

You hereby agree that by using the Platform, any action arising between you and Mycargo in relation therewith, shall be governed by, and construed in accordance with, the laws of the Republic of Kenya, without regard to principles of conflicts of laws, as the same may, from time to time, be in effect, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.

Any and all disputes or controversies arising under or relating to the interpretation or application of the terms of these Terms or any extension or modification thereof, or the asserted breach thereof by any party, shall be resolved through final and binding arbitration in Nairobi in the Republic of Kenya, by a single arbitrator to be chosen by the Chartered Institute of Arbitrators in Kenya, under the Rules of the Chartered Institute of Arbitrators (Kenya Branch) (and where any matter or thing is not covered by such Rules, the provisions of the Arbitration Act 1995, Laws of Kenya ). Any arbitrator so appointed shall be empowered to, in addition to awarding actual money damages (but not punitive damages) against the party found to have violated these Terms, grant in his award, injunctive or other types of equitable relief, to enforce specific performance of these Terms, and to prevent any continuing or further violation of its terms. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction there. The cost of such arbitration shall be borne equally by the parties, except that each party shall be responsible for its own attorneys’ fees.

F. Release

Part of the Services comprise a venue for connecting Cargo Service Providers with Clients and/or other users. Because we are not involved in the actual contact between Clients and Cargo Service Providers, Clients and other users or in the completion of the services provided by Cargo Service Providers, in the event that you have a dispute with a Cargo Service Providers or a Client, as applicable, you hereby release Mycargo (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

Mycargo expressly disclaims any liability that may arise between users of its Service.

G. Entire Agreement.

This Agreement, including, where applicable, all related exhibits, constitutes the sole and entire agreement of the parties regarding the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

H. Further Inquiries

Feel free to direct any questions to us about these Terms, the Platform and our Services, or any other issues, via e-mail at info@mycargo.io