vesion 23 May 2018

THE PARTIES:

CargoHub BV, a Dutch company registered with the Chamber of Commerce under number 55989853, having its registered place of business at Speenkruid 20 in Alphen aan den Rijn, in this matter duly represented by Raoul Edgar Paul (“CargoHub”);

And “the Customer” as mentioned in the license agreement

CargoHub and the Customer are hereafter collectively referred to as the “Parties” and individually as a “Party”;

WHEREAS:

• CargoHub offers a cloud-based cargo quality logistics compliance platform
• the Customer wishes to make use of the cloud-based platform and related services of CargoHub, which CargoHub is willing to provide under the provisions set out in this software-as-a-service agreement;

HAVE AGREED AS FOLLOWS:

• Definitions

Capitalized terms in this Agreement, both in the singular and plural, are understood to have the meaning as described in this article.

 

• Agreement: this software-as-a-service agreement, including any Appendices.
• Appendices: any appendices attached to the Agreement.
• CargoHub Platform: the cloud-based platform of CargoHub made available to the Customer under this Agreement.
• Confidential information: any information provided by one Party to the other in any form whatsoever, either orally or in writing, electronically or in print (i) that is marked as confidential, or (ii) which the Parties should reasonably understand to be regarded as confidential.
• Employees: any person employed or contracted by the Customer or its affiliates.
• End Users: any end users of the CargoHub Platform.
• Intellectual Property Rights: all intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, trademark rights, brand rights, model rights, neighboring rights, patent rights and rights to know-how.
• Materials: all materials, such as websites, (web)applications, software, documentation, training materials, logo’s, reports, concepts, images, texts and all other intellectual creations, as well as data carriers and media on which the materials are stored.
• Office Hours: from 9:00 to 17:00 (CET / CEST) during weekdays, excluding weekends and Dutch holidays.
• Services: any services that CargoHub provides, or has an obligation to provide to the Customer under the Agreement, such as making available and maintaining the CargoHub Platform, as well as providing support and trainings regarding the CargoHub Platform.

• Conclusion and priority
  • The Agreement is concluded on the last date of signature, or, if earlier, at the moment CargoHub receives a written notification of acceptance from the Customer. In the latter case, the Customer shall return a duly signed copy of the Agreement to CargoHub as soon as possible after the Customer has executed the Agreement.
  • In case of inconsistencies between the provisions in the Agreement and any of the Appendices, the provisions in the Appendices shall prevail.

 

• Performance of the Agreement
  • As soon as possible after conclusion of the Agreement, CargoHub shall provide the Services to the Customer as indicated in the license agreement and pursuant to the terms and conditions set out in the Agreement.
  • The Customer shall assist CargoHub insofar as is reasonably necessary and desirable to enable timely and correct performance of the Agreement.
  • The Customer shall provide all information and other data of which CargoHub indicates that it is required, or of which the Customer should reasonably understand that it is necessary for the performance of the Agreement. The Customer warrants that the information and data provided to CargoHub are complete and correct insofar as they reasonably relate to performance of the Agreement.
  • The Customer shall grant CargoHub access to all locations, services and accounts (such as web hosting accounts) under its control insofar as is reasonably required for the performance of the Agreement.
  • If CargoHub provides Services at the office of the Customer or on another location appointed by the Customer, the Customer shall make available all reasonably desired facilities and resources (including personnel) free of charge.
  • CargoHub will have the right to engage third parties in the performance of the Agreement. The related costs shall be borne by CargoHub, unless the Parties explicitly agreed otherwise.

 

• CargoHub Platform
  • After conclusion of the Agreement, CargoHub will configure the CargoHub Platform and provide the Customer with account details (i.e. usernames and passwords) required to access the CargoHub Platform. The number of accounts is specified in the license agreement.
  • The Customer must secure the accounts against unauthorized third party access. CargoHub may assume that all actions undertaken from the accounts are authorized and supervised by the Customer. This means that CargoHub shall have no liability arising from those actions, unless and until the Customer has notified CargoHub that the login credentials are leaked or otherwise unlawfully disclosed.
  • The Customer warrants that any Employees are legally bound to the terms of use for the CargoHub Platform as laid down in terms of use. The Customer is responsible for providing the terms of use to its Employees in a legally valid manner. The Customer is fully responsible for compliance with the aforementioned terms of use by its Employees.
  • When creating an account, all End Users are required to accept the aforementioned terms of use.
  • The CargoHub Platform may only be used by natural persons and in line with the purposes for which the CargoHub Platform is made available to Customer. It is not permitted to use the CargoHub Platform in a manner that causes hindrance for other customers or End Users, or that may damage systems and networks of CargoHub or third parties. Without prior permission of CargoHub, Customer is not allowed to use scripts or programs that automatically: (i) upload data to the CargoHub Platform, (ii) download data from the CargoHub Platform, or (iii) create data on the CargoHub Platform.
  • It is forbidden to use the CargoHub Platform (i) in any way that is unlawful, illegal, fraudulent or harmful, or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

 

• Domain names
  • If this is indicated in the license agreement, CargoHub will register a domain name for accessing the CargoHub Platform in the name of the Customer. Any costs related to the domain name registration shall be borne by the Customer. CargoHub will honor requests from the Customer with respect to moving, transferring or terminating the domain name.
  • CargoHub merely acts as an intermediary between the Customer and the registrar or issuing authority and does not have any influence on the domain name distribution process. In view of the fact that third-party rights may be involved, CargoHub cannot guarantee the continuity or existence of any registered or requested domain names.
  • Domain names are administered by several, generally national, organizations. All these organizations apply their own general terms and conditions regarding the registration of domain names, as well as their own regulations on domain name disputes. The Customer warrants that it will comply with such applicable terms and conditions of domain name organizations.
  • The Customer represents and warrants that its use of such domain name will not undermine or violate the rights of any third party (such as trademarks, tradenames or other Intellectual Property Rights).
  • All consequences ensuing from violation of the general terms and conditions imposed by the registrar or the issuing authority will be for the account and risk of the Customer. CargoHub cannot be held liable for such consequences in any way.
  • Upon termination of the Agreement, the Parties shall mutually determine whether the domain name will be transferred or terminated. Any costs related to such transfer or termination shall be borne by the Customer.

 

• Data usage and storage space
  • The amount of storage space the Customer is allowed to use via the CargoHub Platform shall be specified in License agreement. If the Parties did not make specific arrangements in this regard, use of the CargoHub Platform is subject to a fair use policy.
  • In case a fair use policy is in place, the Customer is allowed to maximally use twice the amount of storage space that other customers of the CargoHub Platform use in comparable circumstances
  • If the Customer exceeds the storage limits, CargoHub shall have the right to charge the Customer for its additional usage against the rates stated in the license agreement. If the license agreement does not contain any rates for additional use, then CargoHub may reasonably charge its customary rates.

 

• Availability and maintenance
  • CargoHub endeavors to keep the CargoHub Platform available at all times, but cannot guarantee uninterrupted availability. With its hosting provider CargoHub has agreed upon a minimal availability of 99,8% per quarter (three months).
  • CargoHub actively maintains the CargoHub Platform. Maintenance causing impact to the availability of the CargoHub Platform will be announced in advance and will take place when use of the CargoHub Platform is averagely low.
  • CargoHub may from time to time add or change functionalities of the CargoHub Platform. Suggestions and feedback of the Customer are welcome, but ultimately CargoHub decide which functions will be added or changed.
  • CargoHub shall announce major updates and upgrades at least thirty days in advance. Minor updates that, in the opinion of CargoHub, do not affect the functionality of the CargoHub Platform in a meaningful way, will be made without prior notice.
  • If, in the opinion of CargoHub, the functioning of the computer systems or network of CargoHub or third parties is actually or under threat of being damaged or jeopardized, CargoHub may take all steps it deems reasonably necessary to end or avert such damage or jeopardy. This may lead to temporarily unavailability of the CargoHub Platform.

 

• Backups and data synchronization
  • CargoHub’s production environment consists of a ‘main’ and a ‘fallback’ system in a second datacenter, which geographical location is different from the datacenter in which CargoHub’s main system is located. CargoHub endeavors to provide real-time data synchronization between the main system and the fallback system. In the (unlikely) event a severe incident occurred with the main system, CargoHub will convert the Customer to the fallback system with minimal loss of data.
  • In addition to article 8.1, every hour CargoHub’s hosting provider will make automatic backups of the data stored by the Customer via the CargoHub Platform. Such backups will be stored on a server in a second datacenter, which geographical location is different from the datacenter in which CargoHub’s main system is located. Each backup will be stored for 30 days.
  • In emergency situations, CargoHub is authorized and will use its best efforts to restore a backup.
  • Restoring a backup on request of Customer may reasonably be subject to an additional fee, unless such restore is necessary because of an attributable failure by CargoHub.

 

• Support
  • CargoHub will make available online documentation regarding the CargoHub Platform. Additional support, such as helpdesk support, consultancy services or on-site support, will only be available (during Office Hours) if this is stipulated in the license agreement.

 

• Contact and consultation
  • Each Party shall appoint a contract manager and one or more contact persons, the contact details of whom are listed in the license agreement.
  • Communication shall take place between the appointed contact persons as much as possible. If an issue cannot be settled directly by the appointed contact persons, the contract manager shall be informed.

 

 

• Prices and payment conditions
  • In consideration for the Services provided under the Agreement, the Customer is required to pay the agreed upon price as stated in the license agreement. Any amounts due to CargoHub shall be paid in advance.
  • Unless agreed upon otherwise in the license agreement, all prices are in euros and exclusive of VAT. CargoHub will send the Customer a digital invoice for any amounts due to CargoHub. Payment must be received within thirty (30) days after the invoice date.
  • If a supplier or subcontractor of CargoHub increases its prices, CargoHub will have the right to change its prices accordingly. Furthermore, CargoHub will have the right to annually increase the agreed upon prices based on inflation, with a maximum of 5%. For other price modifications, article 21 shall apply.
  • If any payment is not received within seven (7) business days following receipt of written notice from CargoHub that it is in default, the Customer shall be considered to be in default and shall promptly pay the amounts due and the statutory interest. Should legal action be required, CargoHub shall be entitled to full compensation for any extrajudicial and judicial collecting costs, including costs for lawyers, legal advisors, bailiffs and debt collection agencies.
  • CargoHub is entitled to suspend or terminate the Agreement with immediate effect and without being obliged to pay compensation, if (i) any amount due under the Agreement is not paid within the payment term; (ii) CargoHub has sent the Customer a written reminder at least 30 days before suspension or termination; and (iii) CargoHub has notified the Customer of its intention to suspend or terminate the Agreement on this basis at least seven (7) business days before suspension or termination.

 

• Intellectual Property Rights
  • All Intellectual Property Rights regarding the CargoHub Platform or any other Materials provided by CargoHub under the Agreement remain with CargoHub or its licensors.
  • CargoHub grants the Customer a non-exclusive and non-transferrable license to use the CargoHub Platform and other Materials for the term of the Agreement in accordance with the provisions contained therein. The Customer is explicitly not allowed to:
    1. make copies or use the CargoHub Platform or the Materials in any manner that falls outside the scope of the Agreement;
    2. sublicense and distribute or otherwise make available the CargoHub Platform or the Materials to third parties without prior written consent of CargoHub;
    3. modify the CargoHub Platform or Materials in any way, or remove or modify any designations regarding the intellectual property rights of CargoHub or its licensors;
    4. reverse engineer, decompile or otherwise attempt to derive the source code from the CargoHub Platform, except to the extent permitted by mandatory law.
  • CargoHub will have the right to take technical measures in order to protect the CargoHub Platform and Materials against unlawful or unauthorized use. If such measures are taken by CargoHub, the Customer is not allowed to circumvent or remove the measures taken.

 

• Data and privacy
  • Any data stored or processed by means of the CargoHub Platform remains the property of the Customer or the End User. CargoHub obtains a non-exclusive and perpetual license to use the data for the performance of the Agreement.
  • If required by applicable privacy and data protection laws and regulations, the Parties shall enter into a data processing agreement before the Services are provided to the Customer.
  • If required by applicable law, for example: when CargoHub exports personal data collected by CargoHub itself to Customer and Customer is based in the U.S., then Parties will comply with the EU-U.S. Privacy Shield Framework
  • CargoHub shall endeavor to provide the CargoHub Platform with a level of security that is appropriate in relation to the risks involved in the processing of the data and the nature of such data. Unless expressly agreed to otherwise, it is understood and agreed that no special categories of personal data will be processed (e.g. data concerning health). In relation to the aforementioned, the following (security) measures are in place:
    1. the servers (on which the CargoHub Platform is hosted) are located in ISO 27001 and NEN 7510 certified datacenters;
    2. the servers are protected by a firewall;
    3. the servers are equipped with an intrusion detection system;
    4. the servers are protected by an anti (Distributed) Denial of Service (DDoS) setup.
  • The Customer represents and warrants that the data provided to CargoHub under the Agreement does not infringe upon any rights (including intellectual property rights) of third parties and is not libelous, defamatory, or otherwise illegal. The Customer shall indemnify and hold CargoHub harmless from and against all claims of third parties related to the foregoing representations and warranties.

 

 

• Non-solicitation
  • During the term of the Agreement and for one (1) year thereafter, the Customer shall not hire any employees of CargoHub who are involved in the performance of the Agreement, or have such employees work for them in any other way, directly or indirectly, without prior written consent of CargoHub.
  • If the Customer in any way fails to comply with the aforementioned obligation, the Customer will forfeit an immediately due and payable penalty of 25.000 euro per violation and 1000 euro for each day the violation continues (up to a maximum of EUR 50.000,-), without any further act or formality being required. The foregoing shall be without prejudice to any other rights of CargoHub, including the right to claim performance or compensation for the actual damages caused by the violation, insofar as such exceeds the penalty forfeited.

 

• Confidentiality
  • Either Party that receives Confidential Information from the other Party shall protect the confidentiality with an appropriate degree of care against unauthorized disclosure for the term of this Agreement and a period of 2 years thereafter.
  • Each Party warrants that their employees that need to know the Confidential Information are bound to confidentiality provisions that are at least as stringent as the confidentiality provisions contained in this Agreement. Confidential Information will not be disclosed to third parties without prior written consent of the disclosing Party.
  • Confidential Information may be disclosed in response to a valid court or other governmental order, provided (if permitted by such order) the disclosing Party is notified as soon as possible after receipt of the order and given an opportunity to seek legal redress against such disclosure.
  • Information which would otherwise be Confidential Information shall not be deemed confidential to the extent that the receiving Party proves by written records that the information:
    1. is lawfully obtained by the receiving Party from sources available to the general public such as newspapers, patent databases or informative websites;
    2. is lawfully obtained by the receiving Party from a third party, provided that the third party does not breach any confidentiality obligation towards the disclosing Party;
    3. was already in the possession of the receiving Party prior to the date on which it was issued by the disclosing Party; or
    4. was developed by the receiving Party independently and without the use of any information of the disclosing Party.
  • Upon the first request of the disclosing Party as well as directly after termination of this Agreement, the receiving Party shall destroy or delete all Confidential Information in its possession and report that this has been carried out.

 

• Liability
  • The liability of CargoHub for damages incurred by the Customer on any ground whatsoever is limited per event (whereby a series of related events counts as one event) to a maximum amount that is equal to three (3) times the agreed upon monthly license fee as specified in the license agreement (exclusive of VAT), up to a maximum of EUR 25.000,- on a yearly basis.
  • The liability of CargoHub for indirect damages, such as: consequential loss, loss of earnings, missed savings, punitive damages, loss of (business) data and damage due to business stagnation, is excluded.
  • Any limitations of liability shall not apply if and insofar the damage is the result of willful misconduct or deliberate recklessness on the side of CargoHub.
  • For there to be any right to compensation, the Customer must report the damages to CargoHub in writing as soon as possible after the damage has occurred. Any claim for compensation shall be barred by the mere expiry of a period of six months after the damage-causing incident has occurred.
  • Liability on the part of CargoHub for an attributable failure to comply with the Agreement only arises if the Customer gives CargoHub proper notice of default in writing without delay, while providing it a reasonable term to remedy the failure, and CargoHub remains in default as regards compliance with its obligations after that term as well.

 

• Warranties and indemnifications
  • CargoHub represents and warrants that (i) it has the right to enter into the Agreement and to perform its obligations hereunder, without violating any agreement it has with a third party; and (ii) to the best of its knowledge, the CargoHub Platform does not infringe upon any Intellectual Property Rights of third parties.
  • The Customer represents and warrants that (i) it has the right to enter into the Agreement and to perform its obligations hereunder, without violating any agreement it has with a third party; (ii) it will not use the CargoHub Platform in any way that violates anyone’s legal rights, applicable law or provisions contained in the Agreement; and (iii) anyone accessing or using the CargoHub Platform through or on behalf of the Customer is bound to the terms of use as laid down in the terms of use.
  • The Customer shall indemnify and hold harmless CargoHub from and against all claims resulting from the representations and warranties contained in article 2.

 

• Force majeure
  • Neither Party is obliged to comply with an obligation towards the other under this Agreement if it is prevented from doing so as a result of any anticipated or unanticipated outside cause that is beyond its reasonable control, and which causes the affected party to be unable to comply with the relevant obligation(s) (force majeure).
  • This includes a circumstance that is not attributable to fault and that is not for CargoHub’s account pursuant to the law, a legal act or in common opinion. Such force majeure includes in particular (but without limitation): domestic disturbances, war, transportation blocks, strikes, network attacks such as SYN (synchronous) floods or DDoS attacks, supply stagnation, fires, floods, import and export obstructions and in the event CargoHub’s suppliers for any reason prevent it from being able to comply with the Agreement.
  • Each Party has the right to suspend compliance with its obligations under the Agreement during the period of force majeure. If this period exceeds ninety (90) days, each of the Parties will have the right to terminate the Agreement.
  • In the event CargoHub has already complied in part with an obligation under the Agreement at the time the situation of force majeure arises or will be able to comply with this obligation during this period of force majeure, and the part that has been or will be complied with has an independent value, CargoHub will have the right to separately invoice the part that has already been complied with or that will be complied with. The Customer will be obliged to pay this invoice.

 

• Term and termination
  • The term of the Agreement will be determined in the license agreement. If the term of the Agreement is not mentioned in the license agreement, the Agreement is entered into for a period of one (1) year from the last date of signature.
  • Unless explicitly agreed otherwise between the Parties, the Agreement is silently renewed with successive terms of (i) the renewal term specified in the license agreement by the end of each term, or if no renewal term is specified in the license agreement, (ii) one year by the end of each term, unless one of the Parties gives the other Party at least three (3) months notice of termination prior to the end of the term. Termination notices of Customer must be sent via e-mail to: support@cargohub.nl.
  • Either Party may unilaterally terminate the Agreement in the event that:
    1. the other Party:
       • is dissolved;
       • ceases to conduct all (or substantially all) of its business;
       • is or becomes unable to pay its debts as they fall due;
       • is or becomes insolvent or is declared insolvent; or
       • convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
    2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other Party;
    3. an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up.
  • All obligations of the Parties that accrued prior to termination of the Agreement shall survive termination of this Agreement. Furthermore, provisions intended to service termination of this Agreement shall survive termination or expiration of this Agreement, including at least articles 14, 15, 16 and 22.

 

• Exit and continuity
  • On request of the Customer, the Parties will jointly draw up an exit plan within two (2) months from the request. The Parties will attach the exit plan as an Appendix.
  • The exit plan describes and effectuates the migration or transfer of the Customer to another service or another service provider. All costs related to the migration or transfer shall be borne by the Customer.
  • The exit plan shall contain a description of (i) the tasks CargoHub and the Customer will carry out in connection with the transfer or migration; (ii) the cooperation between CargoHub and the Customer; and (iii) the electronic format in which the relevant data will be made available.
  • If the exit plan has not been fully implemented at the termination date of the Agreement, the Agreement will automatically be extended for as long as necessary to complete the migration or transfer. CargoHub however endeavors to efficiently execute the exit plan and not to cause unnecessary delay.
  • CargoHub endeavors to provide continuity of its Services via a redundant setup of its IT infrastructure in two different datacenters. Furthermore, CargoHub pays its hosting provider yearly in advance and has agreed with its hosting provider that the hosting provider will continue to host CargoHub’s Services for at least the rest of the paid for year in the event CargoHub suffers bankruptcy or ceases its business undertaking and will not be able to continue to provide its Services. In such case the Customer may contact CargoHub’s hosting provider.

Contact information CargoHub’s hosting provider (iXL Hosting)
Company	iXL Hosting B.V.
Address	Galvanistraat 117 6716 AE – Ede The Netherlands
Email address	support@ixlhosting.nl
Phone number	+31 (0)318-830207

 

 

• Changes to the Agreement
  • CargoHub preserves the right to amend the Agreement, provided it announces the proposed changes to the Customer at least thirty (30) days in advance.
  • If the Customer objects to the changes, CargoHub will reconsider and withdraw the amendment if it considers the objection well-founded. However, if CargoHub decides to implement the changes despite the objection, the Customer will have the right to terminate the Agreement as of the moment the changes enter into effect.

 

• Miscellaneous
  • The Agreement is governed by Dutch law. Any disputes arising from the Agreement that cannot be resolved amicably shall be brought before the competent court in the principal place of business of the defendant.
  • The term ‘written’ or ‘in writing’ in the Agreement also refers to email communication, provided that the identity of the sender and the integrity of the contents of the email are adequately established.
  • If any provision of this Agreement proves invalid, such will not impair the validity of the entire Agreement. The Parties to this Agreement will furthermore adopt (a) new provision(s) by way of replacement, which implement(s) the intention of the original provision as much as legally possible.
  • CargoHub will be authorized to transfer its rights and obligations under the Agreement to a third party that acquires the business operations to which the Agreement is subject.
  • The version of any communication between the Parties received or stored by CargoHub shall be deemed the authentic version, unless the Customer can prove that this version is not authentic.