PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND KLEARNOW. In these Terms and Conditions, the words “including” and “include” mean “including, but not limited to.”
These KlearNow Terms and Conditions (the “Terms”) constitute a legally binding agreement (the “Agreement“) entered into by and between the company or individual identified within this sign-up page (“Customer” or “Broker” as appropriate, “You” or “User”) and KlearNow, Corp., a Delaware corporation (“KlearNow” or “Company”) governing User’s use of the KlearNow website, applications, and technology platform (collectively the “Platform”).
By entering into this Agreement, and/or by using or accessing the Platform you expressly acknowledge that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PLATFORM. If you use the services of KlearNow or its affiliates to clear goods in a country other than the U.S., by using the Platform for clearance of goods in that country you agree to be subject to KlearNow’ terms of service for that country. For Canada Users, in addition to the Terms, User agrees to the Supplemental Terms for Canada, Annex A.
The Terms may be modified or updated by KlearNow from time to time, effective upon the posting of an updated version of the Agreement at www.KlearNow.com/terms. KlearNow will provide User with a notice of any such modifications or updates via email and/or the Platform, and User is responsible for regularly reviewing the Agreement. Continued use of the Platform after any such modifications or updates shall constitute User’s consent to such changes.
1. The KlearNow Platform
(a) The Platform provides a technology solution and marketplace where persons seeking Customs brokerage services (“Customers”) can be matched with licensed Customs brokers (“Brokers”), using a technology platform that facilitates management, tracking and timely clearance of Customer’s international goods.
Customers and Brokers are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Platform. KlearNow reserves the right to shut down any additional accounts created by User. Once a User establishes an active account, User can set access and administrative rights for individuals through the User’s Dashboard.
(b) Upon initiation of a Services request, User authorizes KlearNow to (i) provide Customer with a KlearNow broker; (ii) match User with a Customer or Broker based on factors such as the port of entry through which the goods are to be cleared, the type of goods being cleared, the estimated time of arrival into the port of entry, user preferences, and Platform efficiency, and/or (iii) to cancel an existing match and rematch based on the same considerations. For purposes of this Agreement, the customs brokerage services provided by Broker to Customer through the Platform shall be referred to as the “Services” and are intended to include transactions with U.S. Customs and Border Protection (or any other applicable government customs agency having jurisdiction over imports and exports such as the Canada Border Services Agency (collectively, “Customs”) concerning the entry and admissibility of merchandise, its classification and valuation, the payment of duties, taxes, or other charges assessed or collected by U.S. Customs and Border Protection (or other applicable agency) upon merchandise by reason of its importation or exportation, or the refund, rebate, or drawback thereof. The “Services” also include the preparation of documents or forms and the electronic transmission of documents, invoices, bills, or parts thereof, intended to be filed with U.S. Customs and Border Protection (or other applicable agency).
(c) Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Service transaction shall constitute a separate agreement between the Broker accepting the Services request and the Customer initiating the request. Broker shall be responsible for Customer’s execution of any necessary additional Power of Attorney or Customs Brokerage agreement required in connection with the Services; the foregoing notwithstanding, any such ancillary agreements shall not conflict with the Terms of this Agreement.
(d) User Dashboard. Upon establishing an active account, User shall be provided with access to the Platform’s browser-based online dashboards (“Dashboard”).
The Dashboard will (i) enable Brokers to view a current list of all Service requests available to Broker and enable Customers to view a current list of all Service requests Customer has initiated and their status; (ii) allow Users to edit their User Profiles and view their Services transaction histories, track Customer’s goods from the port of entry to their intended destination by a freight transporter that has downloaded the KlearNow Trucker application on its mobile device, and access information pertaining to the Services, which may include, without limitation, Customer’s name together with the Service request time and date, documentation relevant to the provision of Services such as ISF and other Customs forms, the origin and destination of goods, the Declared Value and type of goods being cleared, the Carrier and Recipient of the goods, the time and date the Service request was accepted by a Broker, the trip route, Shipping Container and Pallet ID’s, assigned Job ID, the duties, taxes, bonds, and other fees or expenses incurred in connection with the Services transaction, and post-entry delivery information; (iii) allow Users to provide additional Linking Data to enable the User Payment Option as further described in Section 5(b) as well as manage, update and make payments through User’s electronic payment account(s) and User Card on file in connection with the User Payment Option; (iv) allow authorized administrators to revoke an individual’s access to the User Payment Option or User account; (v) allow Users to access and file certain Customs forms relating to the provision or receipt of Services with the applicable Customs agency; and (vi) appoint and remove administrators and read only access individuals for the User account (collectively, “Dashboard Data”).
(e) User agrees to use Dashboard Data solely for legitimate business purposes including, but not limited to, the provision of Services, Customs filings, User communications relating to participation in the Services, business expense processing, accounting, and budgeting purposes.
(f) KlearNow reserves the right to add, remove and update features and functionality of the Dashboard at any time.
2. Standing of Company
(a) KlearNow acts as an independent contractor, except where expressly authorized in writing by a Customer and agreed to by KlearNow to act as an “agent” of Customer with respect to the performance of the following services: entry and release of goods; post entry services; documentation filing for the Customer; and other dealings with government agencies on behalf of Customer for the purpose of clearing Customer’s goods through Customs. As to all other Services, KlearNow acts as an independent contractor.
(b) KlearNow’ Relationship with Broker. As a Broker on the Platform, Broker acknowledges and agrees that Broker and KlearNow are in a direct business relationship, and the relationship between Broker and KlearNow under this Agreement is solely that of independent contracting parties. Broker and KlearNow expressly agree that (i) this is not an employment agreement and does not create an employment relationship between Broker and KlearNow; and (ii) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. Broker has no authority to bind KlearNow, and undertakes not to hold Broker out as an employee, agent or authorized representative of KlearNow. KlearNow and Broker act as independent contractors, in order to match a Customer with a Broker who will then act as agent on behalf of Customer.
(c) KlearNow does not, and shall not be deemed to, direct or control Broker generally or in Broker’s performance under this Agreement specifically, including in connection with Broker’s provision of Services, Broker’s acts or omissions, or Broker’s handling of Customer’s goods in connection with the Services. Broker retains the sole right to determine when, where, and for how long Broker will provide services through the Platform so long as it maintains an Active Account. Broker retains the option to accept or to decline or ignore a request for Services via the Platform, or to cancel an accepted request for Services, subject to KlearNow’ then-current cancellation policies. Other than as required by law or other applicable rules or requirements, KlearNow shall have no right to require Broker to display KlearNow’ name, trademarks or logos: (i) on Broker’s website(s); or (ii) Broker’s documents, correspondence or other materials in providing its Services. Broker acknowledges and agrees that it has complete discretion to provide Services or otherwise engage in other business or employment activities.
(d) Broker as agent for Customer. Once Broker accepts a request for Services, Broker and Customer shall execute and are solely responsible for executing all necessary Powers of Attorney and ancillary agreements for the provision of Customs brokerage services naming Broker as agent of Customer for the provision of Services.
(e) USER ACKNOWLEDGES AND AGREES THAT THE KLEARNOW PLATFORM IS A TECHNOLOGY PLATFORM THAT ENABLES CUSTOMER ACCESS TO REQUEST ON- DEMAND CUSTOMS BROKERAGE SERVICES PROVIDED BY INDEPENDENT
PROVIDERS. KLEARNOW DOES NOT DIRECTLY PROVIDE FREIGHT, LOGISTICS OR TRANSPORTATION SERVICES. KLEARNOW DOES NOT GUARANTEE AVAILABILITY OF CUSTOMS BROKERAGE, TRANSPORTATION OR ANY OTHER SERVICE, ON-TIME DELIVERY ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICES LEVELS RELATED TO INDEPENDENT TRANSPORTATION OR OTHER PROVIDERS THAT MAY BE OBTAINED WITHIN OR OUTSIDE OF THE KLEARNOW PLATFORM.
The Platform may only be used by individuals who can form legally binding contracts under applicable law and is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow persons other than authorized personnel and authorized business partners with a legitimate business purpose to use or access your User account.
4. KlearNow Communications
By entering into this Agreement or using the Platform, User agrees to receive communications from Company, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from KlearNow and its affiliated companies may include but are not limited to: operational communications concerning your User account or use of the Platform or Services, updates concerning this Agreement or new and existing features on the Platform, news concerning KlearNow and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
5. Provision of Services
User is responsible for all User activity on its account. User acknowledges and agrees that it is the responsibility of User to know and comply with the requirements, laws and regulations of any Federal, State and/or local agencies pertaining in any way to Customer’s merchandise or goods, including, but not limited to, regulations, laws, and requirements pertaining to marking, classification, licensing, transporting hazardous materials, export controls, and any other transporting, importing, or exporting requirements.
(a) Active Account Required for Services.
(i) For Customer, a Customer profile and a valid Power of Attorney that has been executed by its legal representative are required to establish an active account on the Platform (“Customer Active Account” or “User Active Account”). Customer acknowledges and agrees that it must maintain a valid and current Power of Attorney designating KlearNow as agent on behalf of Customer, in order to maintain a Customer Active account. Once a Customer Active Account is established, Customer can request Services from a Broker through the Platform. If at any time, Customer revokes its valid and then current Power of Attorney, then Customer agrees and acknowledges that Customer will no longer be able to receive Services through the Platform and its account will be deactivated until a new Power of Attorney is executed.
(ii) For Broker, a Broker Profile and a valid customs broker license for a country or jurisdiction serviced by the Platform is required to open an active account and to accept Service requests on the Platform (“Broker Active Account”).
(iii) Broker acknowledges and agrees that upon completion of a Services transaction, Broker’s performance will be scored on a range from 1 to 5 where 5 is the highest score (“BrokerScore”). The BrokerScore is a composite of Customer feedback and an internal BrokerScore calculation based on various cumulative performance factors including (A) Broker responsiveness during the clearing process; (B) filing accuracy; (C) overall time taken to complete the transaction; (D) whether KlearNow was required to intervene during the clearing process; (E) if information was needed from the recipient, the duration of time taken until the recipient was contacted; and (F) clearing time duration once the shipment paperwork was received by Broker from the Shipper/Recipient. The BrokerScore will appear on Broker’s Dashboard and will be disclosed to those Customers receiving Services from Broker. After the completion of ten Services transactions, Broker must maintain a minimum average BrokerScore as set by Company from time to time in order to maintain an Active Account on the Platform.
(vi) User acknowledges that certain Users may be suspended or banned from use of the KlearNow Platform due to future or past violations of the User Terms (“Violations“), and that KlearNow shall have no obligation or liability related to a User that is unable to obtain or maintain a User Active Account for the purposes of making payments hereunder due to Violations.
(b) Account Linking for User Payment Option
(i) Once a User’s Active Account is established, User has the option of maintaining during the term of this Agreement one or more valid electronic payment account such as ACH account(s) from User’s checking or savings account (“Payment Account”), and/or one or more valid credit card number(s) (“User Card”) that may be used for Charges as set forth herein (the “User Payment Option”). Using such Payment option, User, at its discretion, may authorize individual users with payment authority in User’s Active Account to make payments when using the KlearNow Platform. User acknowledges and agrees to pay all User Charges incurred, as well as any applicable services and platform fees, in accordance with the terms and conditions of this Agreement. User may be required to pay a fee for making payments through the User Payment Option. If required to pay a fee, User will be notified of the exact amount of the fee prior to finalizing and making the payment. Subject to Customer’s compliance with this Agreement, KlearNow agrees to use commercially reasonable efforts to provide the Platform to Users as set forth herein.
(ii) To enable the User Payment Option for User’s Active Account, User must provide KlearNow with (A) such Active Account holder’s full name, Payment Account and/or User Card numbers, (B) the Active Account holder’s email address on the top level domain of Customer (e.g., dsmith@Customer.com), and (C) other identifying information about the Active Account holder, the Payment Account and/or User Card as reasonably requested by KlearNow (“Linking Data“).
(iii) KlearNow will use the Linking Data provided by User for the purpose of (A) authenticating the identified Active Account holder and linking such Active Account with the User Payment Option, Payment Account and/or User Card, and (B) verifying the User Payment Account or User Card status from time to time during the Term. All Users invited to enable the User Payments Option will receive an email to the email address in the Linking Data with instructions for linking their individual Active Account with User’s Payment Account and/or User Card. Upon the linking of the User Payment Option to User’s Active Account, such User shall be provided the option, on a transaction basis, to apply User Charges to either the User’s electronic Payments Account or such User Card via the User Payment Option.
(iv) For any payments made through the User Payment Option to either a Broker or applicable Customs agency, User acknowledges that KlearNow is not responsible for the Broker’s or Customs agency’s handling of payments after the funds have been paid. Additionally, while any payments through the User Payments Option will be processed promptly, User acknowledges that a number of factors, several of which are outside of Company’s control, will contribute to when the funds are received by a Broker or applicable Customs agency. KlearNow makes no representations or warranties regarding the amount of time needed to complete processing, such as delays in the banking system or third-party payment processing system.
(iv) User acknowledges that the verification and linking of Payment Accounts and/or User Cards through the User Payment Option described herein will require KlearNow to contact the respective financial institutions as well as those authorized to make payments through the User Payments Option using the Linking Data, and User agrees to inform, and get all necessary consents to contact such User and User’s payment providers for the purpose of making payments under User’s Active Account. User shall ensure that Linking Data provided to KlearNow is accurate and complete, and KlearNow shall not be liable to User, former User, or any other party with respect to inaccurate or incomplete Linking Data supplied by User.
(v) User acknowledges and agrees that by linking User’s Active Account with the User Payments Option, KlearNow may provide through the Platform detailed information, including the duties, taxes, and other fees to be paid in connection with Services through User’s Payment Option, will be disclosed, and User agrees to provide any necessary consent for KlearNow to share such detailed information.
(vi) A User’s Active Account may be unlinked from the User Payments Option at any time by unlinking such User through the Dashboard, or (ii) by deleting the Customer Payments option for such User from the Active Account.
(c) Network Access and Device
User is responsible for obtaining the data network access necessary to use the Platform. User’s mobile network’s data and messaging rates and fees may apply if You access or use the Platform, or agree to receive communications from the Platform, on your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Platform and any updates thereto. KlearNow does not guarantee that the Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
6. Services by Third Parties
Customer agrees that it is solely responsible for obtaining from third party providers all transportation, freight forwarding, logistics, sending, receiving, insurance, and storage services for any goods or merchandise that are cleared or intended to be cleared through the provision of Services under this Agreement. Customer acknowledges and agrees that it is responsible for providing notice and a copy of these Terms to all of its agents or representatives. In the event the KlearNow renders any such services to Customer, the Terms as set forth herein shall also govern those services, unless otherwise specified by Company.
KlearNow assumes no liability as a carrier and shall not be held responsible for any loss, damage, expense or delay to the goods to be forwarded or imported, but undertakes only to use reasonable care in the selection any customs brokers, agents, and others to whom it may select for the clearance of Customer’s goods.
7. Reliance On Information Furnished
(a) Customer’s Duty to Furnish Information.
(i) On an import shipment, at a reasonable time prior to entering of the goods through the applicable Customs agency, Customer shall furnish through the Platform, documents, images and/or invoices in proper form and other documents necessary or useful in the preparation of the jurisdiction’s Customs entry and also, such further information as may be sufficient to establish inter alia, the dutiable value, the classification, the country of origin, quantity, weight, admissibility and the genuineness of the merchandise and any mark or symbol associated with it, and the Customer’s right to import and/or distribute the merchandise, pursuant to all applicable laws or regulations of that jurisdiction. If Customer fails to furnish in a timely manner such information or documents, in whole or in part, as may be required to complete Customs entry or comply with such laws or regulations or if the information or documents furnished are inaccurate, incomplete, or otherwise insufficient, the Company shall be obligated only to use the best judgment in connection with the shipment and in no instance shall be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete, omitted or otherwise insufficient information or document pertains.
(ii) On an export shipment at a reasonable time prior to exportation of the shipment, the Customer shall furnish through the Platform the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the applicable jurisdiction through which the goods are being cleared and the country of destination of the goods.
(iii) On an export or import shipment, KlearNow shall not in any way be responsible or liable for increased duty, penalty, fine or expense. Customer agrees and acknowledges that any technology provided through the Platform to convert images or documents for purposes of preparing and filing documents for export or import shipment of goods intended to be submitted to a government agency will not have a 100% conversion success.
(b) In preparing and submitting Customs entries, export declarations, applications, security filings, documentation and/or required data, KlearNow relies on the User’s review of the accuracy and completion of all documentation, data, whether in written or electronic format, and on all information furnished by User, including but not limited to tariff classification and information relating thereto. User shall use reasonable care to ensure the correctness and completeness of all such documentation and information and shall indemnify and hold KlearNow harmless from and against any and all claims, liability or losses, including but not limited to attorneys fees, suffered by reason of the User’s failure to disclose documentation or information, or any incorrect, incomplete or false statement by the User or its agent, representative or contractor upon which KlearNow reasonably relied. User agrees that the User has an affirmative non-delegable duty to disclose and review for accuracy and completeness any and all documentation and information required to import, export, enter and/or clear the goods.
(i) User acknowledges and agrees that it is required to furnish accurate information, documents, data, and declarations prepared and/or filed through the Platform including any information filed or declared on User’s behalf with U.S. Customs and Border Protection, other Customs or government agencies and/or third parties, and will immediately advise KlearNow of any errors, discrepancies, incorrect statements or classifications, or omissions on any declaration or other submission filed on User’s behalf.
(ii) Customer shall be bound by and warrant the accuracy of all data, invoices, documents and information furnished and validated to Company by the Customer or its agent for import, export, entry or other purposes and the Customer agrees to indemnify and hold KlearNow harmless against any increased duty, penalty, fine or expense including but not limited to attorneys’ fees, costs, and expenses resulting from any inaccuracy, incomplete statement, omission or any failure to make timely presentation of required invoices, documents and information, even if not due to any negligence of the Customer.
(c) Where a bond is required by U.S. or other Customs agency to be given for the production of any document or the performance of any act, and Customer requests and KlearNow agrees in writing to provide such bond, Customer shall be deemed bound by the term of the bond, it being understood that KlearNow entered into such understanding at the instance and on behalf of the Customer, and the Customer shall indemnify and hold KlearNow harmless for the consequences of any breach of the terms of the bond. User may be required to pay a fee for use of the KlearNow bond. If User is required to pay a fee, User will be notified of the exact amount of the fee prior to finalizing and making the payment.
(d) KlearNow shall not be responsible for action taken or fines or penalties assessed by any governmental agency against any shipment cleared using the Services or the Platform because of the failure of User to comply with the law or the requirements or regulations of any governmental agency or with a notification issued to the User by any such agency.
As a Customer, you understand that a request for Services may result in charges to you (“Charges”). Charges include fees for the provision of Services through the Platform, and other actual or anticipated applicable brokerage fees, bond fees, duties, taxes and any other fees due in connection with the delivery, receipt, storage, fumigation, inspection and clearance of your goods. User agrees that User is responsible for all User Charges incurred, regardless of whether such User Charge was authorized and that User Charges may be subject to price changes at any time, including, without limitation, occasional increases during periods of high demand.
(a) KlearNow has the authority and reserves the right to determine and modify pricing for Services and for use of the Platform by posting applicable pricing terms or quoting you a price for a specific clearance transaction at the time you make a request. KlearNow will use reasonable efforts to inform you of any such increases at the time of your request. Pricing may vary based on the type and timing of the clearance required for your goods. You shall be responsible for all Charges incurred under Your account regardless of your awareness of such Charges or the amounts thereof.
(b) Quotations Not Binding. Quotations as to brokerage fees, rates of duty, freight charges, bond fees, storage fees, insurance premiums or other charges to the extent given to Customer by KlearNow are for informational purposes only and are subject to change without notice; no quotation shall be binding upon KlearNow unless KlearNow specifically agrees in writing that such quotation is binding and to undertake the handling or transportation of the shipment at a specific rate or amount.
(c) Whether or not through the Platform, all Charges are to be paid directly by Broker to the applicable Customs agency in connection with the provision of Services, and/or directly by Customer to Broker or by Customer to the applicable Customs agency as agreed to by Customer and Broker. Charges can be paid by
Customer or Broker through the Platform’s User Payment Option, however, additional fees may apply.
(d) In no case shall KlearNow be obligated or responsible for advancing money on behalf of a User unless KlearNow specifically agrees to do so in writing at its sole discretion. KlearNow shall not incur any expense, guarantee payment or advance any money in connection with the importing, entering, forwarding, transporting, insuring, storing or coopering of the goods, unless monies sufficient to satisfy such expense, payment, or advance is previously provided to the Company by the Customer on demand. In the event that KlearNow should advance any such monies to any person or entity that subsequently refunds all or any portion thereof to the Customer, and the Customer at the time of the refund, has not reimbursed KlearNow for those monies, then any portion of the refund corresponding to such unpaid, advanced monies, and any interest paid thereon, shall be deemed the exclusive property of KlearNow to which the Customer shall have no claim, and which the Customer shall return to the Company immediately upon receipt.
(e) User further agrees and acknowledges that upon addition of a new payment method through the User’s Payment Option or upon a Service request, KlearNow may seek authorization/verification of User’s selected payment account to verify the payment method, ensure that all clearance costs will be covered, and protect against unauthorized behavior. KlearNow may also replace its third-party payment processing services without notice to User.
(f) User agrees that it is solely responsible for all User Charges incurred via the Platform, regardless of whether such User Charge was authorized by User. User agrees that KlearNow shall not be responsible for User Charges incurred by a User after User has attempted removal of a previously authorized individual from the Platform to the extent User provides incomplete or inaccurate User removal information via the Platform. Finally, as between User and KlearNow, User shall be responsible for the User Charges incurred due to fraudulent or other unpermitted activity on the part of User’s use of the Platform. User shall notify KlearNow promptly upon discovery of fraudulent or unpermitted activity occurring under User’s account.
(g) After a Customer requests customs brokerage Services for its goods, Customer or Broker may cancel such request through the Platform, but acknowledges and agrees that in certain cases a cancellation fee may apply. If Broker does not complete an accepted Services transaction within the time frame set by Company, Broker acknowledges and agrees that Company shall reassign the Service transaction to a different Broker.
(h) Brokers will receive payment directly from the Customer for the provision of Services according to the rates set forth and agreed to by Broker upon Broker’s acceptance of a Services request, or as otherwise set forth pursuant to the terms of any Broker Addendum provided by KlearNow, which shall form part of this Agreement between Broker and KlearNow. The Broker Addendum shall be made available to Broker in the Broker dashboard when Broker logs into Broker’s account.
(i) The compensation of KlearNow for all its Services and for use of the Platform by Users shall be set forth by Company pursuant to the initiation and acceptance of a Services transaction, or as set forth and incorporated into the Broker rates paid by Customer as set forth in the Broker Addendum.
(j) KlearNow reserves the right to immediately suspend User’s account and suspend any or all individuals authorized by Users to access the account and who have activated the User Payment Option in the event that any unpaid User Charges are incurred by User due to, a shortage of funds in User’s Payment Account, an invalid User Card on the User account, or a rejected User Card transaction. KlearNow further reserves the right to pursue any and all remedies available to it under applicable law, including reporting User to applicable credit reporting agencies, in the event of any unpaid Charges hereunder. Reestablishing a User account shall be at KlearNow’s sole discretion. All late payments shall bear interest at 3% per month or the maximum allowed by applicable law, if less than 3%.
(k) In any referral for collection or action against the User for monies due to KlearNow, upon recovery by KlearNow, the User shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
With respect to User’s use of the Platform and User’s participation in the Services, User agrees that it will not:
(a) impersonate any person or entity;
(b) threaten, or otherwise harass any person;
(c) violate any law, statute, rule, permit, ordinance or regulation;
(d) interfere with or disrupt the Platform or the servers or networks connected to the Platform;
(e) post information or interact on the Platform or Services in a manner which is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal;
(f) use the Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(g) post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
(h) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Platform;
(i) “frame” or “mirror” any part of the Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose;
(j) modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Platform or any software used on or for the Platform;
(k) rent, lease, lend, sell, redistribute, license or sublicense the Platform or access to any portion of the Platform;
(l) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Platform or its contents;
(m) link directly or indirectly to any other web sites;
(n) transfer or sell your User account, password and/or identification to any other party
(o) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
(p) cause any third party to engage in the restricted activities above.
10. Warranty and Disclaimer of Liability
(a) Each party represents and warrants that: (i) such party has the full right, power and authority to enter into this Agreement; and (ii) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party.
(b) User Warranties. By providing or receiving Services on the Platform, User represents, warrants, and agrees that: (i) all of the information provided by User to create an Active Account on the Platform is true, complete and accurate; (ii) User will not engage in reckless, fraudulent or illegal behavior while providing or receiving Services, will not attempt to defraud a Customer or Broker, will not take action that harms or threatens to harm the safety of a User, the KlearNow community or third parties, and will not accept payment or engage in any other activity in a manner that is inconsistent with User’s obligations under this Agreement; (iii) User has all rights and permissions necessary to provide KlearNow with the User Dashboard Data, Linking Data and any other information provided to KlearNow hereunder in connection with the KlearNow Platform and User Payment Options; (iv) User shall not allow other persons to access or use User’s account unless they are an employee or agent of User with a legitimate business need to access User’s account; (v) User has notified, and obtained legally adequate consent from, appropriate authorized persons for the transactions paid using User’s Active Account and/or the User Payment Option; and (vi) User is in compliance, and shall remain in compliance during the term of the Agreement, with all applicable local, city, state, federal, national, and international laws, rules and regulations relating to data protection, privacy, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security.
(c) Broker Warranties. Broker represents, warrants and agrees that (i) Broker possesses a valid custom broker’s license, has the legal right, is authorized, fit, and has all appropriate approvals, permits and authority to provide Services to Customers in all jurisdictions in which Broker provides Services; (ii) that KlearNow may obtain business information concerning Broker relevant to the provision of Services, including confirming the validity of Broker’s license and/or permit, and Broker agrees to provide any further necessary authorizations to facilitate Company’s access to such business records during the term of the Agreement; and (iii) Broker will pay all applicable federal, state and local taxes based on Broker’s provision of Services and on any payments received by Broker in connection with the same.
(d) Customer Warranties. Customer represents, warrants and agrees that: (i) it is the Importer, Exporter, and/or owner of the goods for which it has retained Broker; (ii) that it has full power and authority to retain, appoint and instruct Broker concerning Services for which it has retained Broker; (iii) that all information provided to KlearNow and Broker shall be complete, true and accurate and acknowledges that KlearNow and Broker shall be relying on such information to provide the services set out herein; (iv) that Customer has all rights and permissions necessary to provide KlearNow with the Customer’s Dashboard Data, Linking Data and any other information provided to KlearNow hereunder in connection with the KlearNow Platform and User Payment Options; (v) Customer has obtained legally-adequate consent from authorized Customer Users as necessary to provide KlearNow with any personal data in connection with the KlearNow Platform and User Payment Options; and (vi) Customer has reviewed all documents submitted either to Broker or the Company through the Platform and has confirmed the accuracy of the information contained therein, prior to the document’s submission to any applicable government agency.
(e) Disclaimers and Limitations of Liability.
(i) KlearNow does not warrant that your use of the Platform will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Platform will be corrected, or that the Platform is free of viruses or other harmful components. KlearNow disclaims liability for, and no warranty is made with respect to, connectivity and availability of the Platform.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, KLEARNOW PROVIDES THE KLEARNOW PLATFORM “AS IS” AND WITHOUT WARRANTY. KLEARNOW DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE KLEARNOW PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE KLEARNOW PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.
KLEARNOW HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE KLEARNOW PLATFORM, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
(ii) User agrees that solely in connection with any and all services performed solely by KlearNow, the Company shall only be liable for its negligent acts, which are the direct and proximate cause of injury to User, including loss or damage to User’s goods, and the Company shall in no event be liable for the acts of third parties.
(iii) In no event shall KlearNow be liable or responsible for (i) consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, or for (ii) the acts of third parties.
(f) Limitation of Actions. Unless subject to a specific statute or international convention, all claims against KlearNow for a potential or actual loss, must be made in writing and received by KlearNow within ninety (90) days of the event giving rise to claim. User’s failure to give KlearNow timely notice shall be a complete defense to any suit or action commenced by User. Claims may not be deducted from Charges and no claim will be considered until all fees due hereunder have been paid in full. In the event that KlearNow pays a claim, KlearNow shall be entitled to possession of the portion of the shipment for which claim was made as salvage, if applicable. The failure to provide the salvage shall be a bar to recovery of any claim.
(g) No Liability for the Selection or Services of Brokers or Third Parties. Unless Services are performed by persons or firms engaged pursuant to express written instructions from the Customer, KlearNow shall use reasonable care in its selection of Brokers for the provision of customs brokerage Services; advice by KlearNow that a particular person or firm has been selected to render Services with respect to Customer’s goods, shall not be construed to mean that the KlearNow warrants or represents that such person or firm will render such Services nor does Company assume responsibility or liability for any action(s) and/or inaction(s) of such Brokers and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a Broker, third party or the agent of a Broker or third party. All claims in connection with the act of a Broker or third party shall be brought solely against such party and/or its agents. In connection with any such claim, KlearNow shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by KlearNow.
11. Indemnification/Hold Harmless
(a) Customer Indemnification for Freight, Duties, etc. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against KlearNow for freight, duties, fines, penalties, liquidated damages or other money due arising from a shipment of Customer’s goods, the Customer agrees to indemnify and hold KlearNow harmless for any amount KlearNow may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including but not limited to attorney fees, costs, and expenses incurred by KlearNow in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to KlearNow to pay all charges or other money due promptly on demand.
(b) User agrees to indemnify, and hold KlearNow including KlearNow’ affiliates, subsidiaries, successors and assigns, and each of KlearNow’ respective officers, directors, employees, agents, or shareholders, harmless from any claims and/or liability, fines, penalties loss, damages, costs, claims, expenses, and/or attorneys’ fees (regardless of whether or not litigation is filed) which KlearNow may hereafter incur, suffer or be required to pay by reason of such claims and/or liability arising from User’s use of the Platform and participation in the Services, including (i) User’s breach of this Agreement or the documents it incorporates by reference; (ii) the importation or exportation of merchandise or any conduct of the User, including but not limited to the inaccuracy of entry, export or security data supplied by User or its agent or representative, which violates any applicable laws; (iii) User’s violation of any federal, state and/or other laws or regulations or the rights of a third party, (iv) any allegation that any materials that User submits or transmits to Company or Broker infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (v) the provision of Services and/or any other activities in connection with the Services; which the Company may hereafter incur, suffer or be required to pay by reason of such claims. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
(c) In the event that any such action, suit or proceeding is brought against KlearNow, KlearNow shall give notice in writing to the User by mail at its address on file with the Company. Upon receipt of such notice, the User at its own expense, and, at the KlearNow’ discretion, in cooperation with the KlearNow’ designated counsel, shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against KlearNow.
12. C.O.D. or Cash Collect Shipments
In the event that Goods are received by KlearNow with User’s or other person’s instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise, or to collect on any specified terms by time drafts or otherwise, pursuant to Customer’s express written instruction which are accepted in writing by KlearNow, such Goods shall be received only upon the express understanding that KlearNow will exercise reasonable care regarding such instructions, and KlearNow will not be responsible for any refusal by a bank or consignee to pay for a shipment, or for any act, omission, default, suspension, insolvency or want of care, negligence, or fault of any bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection. All payment documents tendered in satisfaction of C.O.D. shipments will be accepted based solely on User’s accepting all risks related thereto, including without limitation, User’s responsibility for risk of non-payment, insufficient funds, and forgery.
13. No Duty To Maintain Records For Customer
Customer acknowledges that pursuant to Sections 508 and 509 of the Traffic Act, as amended, (19 USC 1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the Unites States. Unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “record keeper” or “record keeping agent” for Customer.
14. Right to Inspect Property.
All shipments may, at KlearNow’ option or as required by government regulation, be screened and/or opened and inspected without liability to KlearNow. The Customer consents to such screening and to pay any and all expenses arising from such screening and/or inspection and understands that this document containing its consent shall be maintained by KlearNow and may be made available to the government regulators upon request. KlearNow is not obligated to perform such inspection except as mandated by law. KlearNow reserves the right to unilaterally reject a shipment it deems unfit after inspection.
15. General Lien
KlearNow shall have a general and continuing lien on any and all property (and documents related thereto) of the Customer within its actual or constructive possession, custody, care, or control or en route, for claims for monies owed to Company and all charges and expenses advanced by KlearNow, including any charges due for prior unrelated shipments, invoices or Services performed by KlearNow or through the Platform.
KlearNow shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its shipment of KlearNow’ rights and/or the exercise of such lien. KlearNow may refuse to surrender possession of the goods until all such charges are paid in full. Unless, within thirty (30) days after receiving the notice of lien, Customer posts cash or a letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110 percent of the value of the total amount due, in favor of KlearNow, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, KlearNow may sell at public or private sale, in accordance with governing law the goods, wares and/or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the monies owed to KlearNow. Any surplus shall be paid to the rightful party and the Customer shall remain responsible for any deficiency.
16. Preparation and Issuance of Bills of Lading; Obtaining Binding Rulings, Filing Protests, etc.
KlearNow is not responsible for preparing and/or issuing a bill of lading, and shall be under no obligation to do so, or specify thereon the number of pieces, packages, and/or cartons, etc. KlearNow shall rely upon and use the cargo weight supplied by Customer.
Unless requested by Customer in writing and agreed to by KlearNow in writing, KlearNow shall be under no obligation to undertake pre or post release actions, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
17. Force Majeure
KlearNow shall not be liable for losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or in part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or its independent contractors, including but not limited to: (i) acts of God, including flood, earthquake, fire, storm, hurricane, power failure or other natural disaster; (ii) war, hijacking, robbery, theft or terrorist activities; (iii) incidents or deteriorations to means of transportation, (iv) embargoes, breaches of contract or omissions by Customer, Shipper, Broker, Consignee or anyone else who may have an interest in the shipment (v) acts or orders or restrictions by any government or any agency or subdivision thereof, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party including denial or cancellation of any import/export or other necessary license; or (vi) strikes, lockouts or other labor conflicts.
18. Severability; Waiver
In the event any paragraph(s), provision(s) and/or portion(s) hereof is found to be invalid, illegal and/or unenforceable, then in such event the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and remain in full force and effect. KlearNow’ decisions to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
Any notice required or permitted to be delivered to User by this Agreement shall be posted to the User’s Dashboard. Any notice required or permitted to be delivered to KlearNow by this Agreement shall be submitted via https://support.KlearNow.com.
20. Governing Law; Consent to Jurisdiction and Venue
This Agreement shall in all respects be interpreted, construed in accordance with, and governed by the internal laws of the State of California, without regard to its principles regarding conflict of laws. In the event of any litigation between the parties related to this Agreement, the parties agree to submit to personal and exclusive jurisdiction for such action in the State Courts for the County of Santa Clara, California or the United States District Court for the Northern District of California. User agrees that any action relating to the services performed by Company, shall only be brought in said courts; consents to the exercise of in personam jurisdiction by said courts over it; and further agrees that any action to enforce a judgment may be instituted in any jurisdiction.
This Agreement is not transferable and may not be assigned by User, in whole or in part, without the prior written consent of KlearNow. KlearNow may assign this Agreement without consent of User, but with notice to User, in connection with a merger or a sale of all of the equity or assets of KlearNow. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party.
22. Term and Termination
This Agreement is effective upon your creation of a User account whether or not an Active Account has been established. This Agreement shall remain in effect until terminated as set forth herein. Either party may terminate this Agreement with or without cause upon seven (7) days’ advance written notice to the other party. All outstanding payment obligations and Sections 2, 5, 9-11, 13, 17-21 and 23-24 of these Terms shall survive the termination or expiration of this Agreement. In addition, KlearNow may terminate this Agreement or deactivate User’s account immediately in the event: (1) User violates the Terms; (2) Broker no longer qualifies to provide Services under applicable laws, rules, permits, ordinances or regulations; (3) Broker falls below KlearNow’s minimum required BrokerScore or cancellation threshold; (4) KlearNow has the good faith belief that such action is necessary to protect the safety of the Platform, User community or third parties.
23. Intellectual Property
(a) All intellectual property rights in the Platform including any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to User in connection with this Agreement, shall be owned by KlearNow absolutely and in their entirety. These rights include database rights, copyrights, Dashboard Data (except for Personal Data or Linking Data), design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. User acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by User to KlearNow are non-confidential and shall become the sole property of KlearNow. KlearNow shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.