Portal Terms and Conditions
CargoBooking Portal – Terms and Conditions (these "Terms and Conditions")
1. INTERPRETATION
1.1 "We", "us" or "our" means Awery Software FZ-LLC. Our main trading address is Al Jazirah Al Hamra, RAKEZ Business Zone-FZ, Ras Al Khaimah, UAE.
1.2 These Terms and Conditions govern your access to the Portal and use of our CargoBooking platform to place and submit bookings, via our cargobooking.aero website (the "Portal Website") or our "CargoBooking" mobile device application, for the provision of air cargo carrier services by third party airlines (and the "Portal" means any or all of such access points to the Booking Services we provide). By submitting your details to us for registration for an Account to access the Portal, you agree to be legally bound by these Terms and Conditions. These Terms and Conditions work together with our EULA, Privacy Policy, Cookie Policy and Terms of Use (as applicable), all of which are available for you to view on our cargobooking.aero website.
1.3 We reserve the right to amend these Terms and Conditions at any time. All amendments to these Terms and Conditions shall be posted on the Portal. Continued use of the Portal shall, however, be deemed to constitute acceptance of the new Terms and Conditions. No other terms or changes to these Terms and Conditions shall be binding unless agreed in writing signed by us.
1.4 In these Terms and Conditions:
1.4.1 the following terms shall have the following meanings:
1.4.1.1 "Account" means an account that we allocate to our customers in order that they are able to access and use the Portal and the Booking Services;
1.4.1.2 "Agreement" means the legal and binding agreement that is in place, on the basis of these Terms and Conditions, for us to make available to you a booking platform in respect of the provision and purchase of air cargo carrier services;
1.4.1.3 "Booking" means the booking that you place and submit with the relevant Carrier using the Portal for the provision and purchase of Carrier Services, subject to the relevant Carrier Terms;
1.4.1.4 "Booking Services" means the services provided by us enabling you to find out data and information about Carrier Services and to place and submit bookings for the purchase and provision of Carrier Services using the CargoBooking platform made available by us subject to this Agreement, which include the provision to you by us of access to the Portaland such other facilities, functions and services that form part of the Booking Services and/or the Portal from time to time;
1.4.1.5 "Breach of Duty" means the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
1.4.1.6 "Business Day" means any day other than: (i) a Saturday; (ii) a Sunday; or (iii) any day when the clearing banks in the City of London are not physically open for business;
1.4.1.7 "Carrier" means any third-party airline offering Carrier Services, which are available for you to book using the Portal;
1.4.1.8 "Carrier Services" means the air cargo capacity and carrier services provided by Carriers in respect of which you are able to place and submit bookings using the Portal;
1.4.1.9 "Carrier Terms" means the terms and conditions of supply of the relevant Carrier applicable to the Carrier Services in respect of which you place and submit a Booking, as set out in or on the back of the relevant airwaybill and/or otherwise (as applicable);
1.4.1.10 "Intellectual Property Rights" means copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to good shall or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world;
1.4.1.11 "Liability" means liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract);
1.4.1.12 "Material" means any information, data or other material that you upload (or permit to be uploaded) onto our servers as part of our provision of the Booking Services;
1.4.1.13 "Party" means either us or you, and "Parties" shall mean both of us and you;
1.4.1.14 "Users" means those of your employees and independent contractors who you authorise to access the Booking Services through the Portal under this Agreement; and
1.4.1.15 "you" or "your" means our customer user that submits a Booking to us;
1.4.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.4.3 the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
1.4.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral, and references to persons shall include an individual, company, corporation, firm or partnership;
1.4.5 reference to "written" or in "writing" includes the electronic form;
1.4.6 references to "includes" or "including" or like words shall mean without limitation; and
1.4.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2. EFFECT
2.1 This Agreement shall apply to any and all access and use of an Account, the Portal and/or the Booking Services. When you register for an Account (and each time any User subsequently accesses your Account), this shall always constitute your unqualified acceptance of these Terms and Conditions (or, in accordance with Clause 1.3, the Terms and Conditions then in force).
2.2 Save as otherwise expressly provided in Clause 1.2, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties and in any way relating to the subject matter of this Agreement, to the exclusion of any representations not expressly stated in this Agreement, except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. You acknowledge that you have not accepted these Terms and Conditions based on any representation that is not expressly incorporated into these Terms and Conditions.
2.3 Save as otherwise expressly provided in Clause 1.2, this Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and no other provisions, terms, conditions or obligations, whether oral or written, express or implied, shall form any part of this Agreement.
2.4 For the avoidance of any doubt, by accessing andusing an Account, the Portal and/or the Booking Services, you acknowledge and agree that any Booking that you place and submit through any such access and use shall be subject only to the relevant Carrier Terms and not this Agreement.
3. REGISTRATION FOR AN ACCOUNT
3.1 In order to access and use the Booking Services via the Portal,you or any User authorised to act on your behalf and contractually bind you must first have registered for an Account for you via the Portal and you must have been allocated an Account by us. The Booking Services are not accessible or capable of being used via any means other than the Portal.
3.2 If you have, or any User authorised to act on your behalf and contractually bind you has, registered for an Account for you via the Portal and we have allocated an Account to you, you and the Users shall be able to access information and functionality on the Portal enabling use of the Booking Services.
3.3 In order for us to allocate an Account to you and afford you and the Users the ability to access and use the Portal and the Booking Services, you must provide us with such data, information and other Material and assistance as we may require for such purposes from time to time, and you must ensure that all such data, information and other Material is accurate, complete and up-to-date (and remains accurate, complete and up-to-date by ensuring that we are promptly notified of any subsequent changes in any such data, information and/or other Material).In providing any such data, information or other Material, you hereby acknowledge and agree that we shall copy, exploit, process, store, transmit and otherwise use all such data, information and other Material (whether personal or non-personal) only for the purposes of and to the extent required for:
3.3.1 registering you for an Account;
3.3.2 allocating an Account to you;
3.3.3 affording you and the Users the ability to access and use the Portal and the Booking Services; and
3.3.4 Clauses 5.1.1 to 5.1.7.
3.4 Once we have allocated an Account to you for the purposes of affording you and the Users the ability to access and use the Portal and the Booking Services, we shall allocate to you a username and password for you and the Users to access your Account. You acknowledge and agree that any and all Users are authorised to act on your behalf and contractually bind you in the course of accessing and using the Portal and the Booking Services. You must keep the allocated password confidential and immediately inform us if any unauthorised third party becomes aware of that password or if there is any unauthorised use of the Portal and/or the Booking Services or any breach of security known to you; in such a case, you must request a new password from us. You are entirely responsible if you do not maintain the confidentiality of your password.
3.5 We recommend that you request a new password from us if you remove authorisation for any of the Users to access and use the Portal and the Booking Services.
4. BOOKING SERVICES
4.1 We shall provide to you access to the Booking Services and the Portal.In so doing, the Parties acknowledge and agree that: (i) we are acting via the CargoBooking platform exclusively as an intermediary enabling you to access and use the Portal and the Booking Services in order to find out information about Carrier Services and to place and submit bookings and contract directly with Carriers for the provision and purchase of Carrier Services subject to the relevant Carrier Terms; and (ii) in no case are we in any way responsible or liable for the provision or otherwise of any Carrier Services, are we acting in any way as a provider of Carrier Services or are we in any way contracting with you and/or any Carrier for the provision of Carrier Services. We warrant that:
4.1.1 we shall use our reasonable skill and care in providing the Booking Services;
4.1.2 we have all necessary consents, rights and permission to enter into, and perform our obligations under, this Agreement; and
4.1.3 we shall comply with all applicable laws, statutes and regulations in relation to the exercise of our rights and performance of our obligations under this Agreement.
4.2 You may access the Portal only with a browser that is compatible with the Portal, including any security features that are part of the Portal.
4.3 In relation to the Portal and the Booking Services:
4.3.1 we hereby grant to you a non-exclusive, non-transferable licence to allow you and the Users to access the Portal and to use the Booking Services solely for your business purposes;
4.3.2 the rights provided under this Agreement are granted to you only, and shall not be considered granted to any subsidiary or holding company of you; and
4.3.3 you shall not and you shall ensure that the Users shall not:
4.3.3.1 attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Portal or the Booking Services except to the extent expressly set out in this Agreement or as may be required by any applicable law;
4.3.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Portal or the Booking Services, except as may be required by any applicable law;
4.3.3.3 access or use all or any part of the Portal or the Booking Services in order to build a product or service which competes with the Portal and/or the Booking Services; or
4.3.3.4 access or use the Portal and/or the Booking Services to provide services to third parties.
4.4 We do not warrant that the Booking Services shall meet your individual requirements. For the avoidance of any doubt, we are not responsible for any connections, deliverables or services that we are not expressly stipulated to provide in this Agreement, including any Carrier Services.
4.5 We do not warrant that the Booking Services, your Account and/or the Portal shall be uninterrupted, error-free or secure from unauthorised access, or that they shall meet your individual requirements. Whilst we shall use our reasonable endeavours to make the Booking Services, your Account and the Portal available at all times, we shall not have any Liability if for any reason the Booking Services, your Account or the Portal are unavailable at any time or for any period. We make no warranty that your access to the Booking Services, your Account or the Portal shall be uninterrupted, timely or error-free. Due to the nature of the Internet, this cannot be in any way guaranteed.
4.6 We may, at our absolute discretion, from time to time either host the Portal on our own servers or use third party suppliers to do so in whole or in part. You acknowledge that we may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements on Users or reasonably restrict Users’ rights due to the requirements of the third party suppliers.
4.7 We reserve the right, at any time, to (i) carry out repairs, maintenance and support in respect of all or any part of the Booking Services and/or the Portal, (ii) change, develop or discontinue all or any part of the Booking Services and/or the Portal, and/or (iii) introduce new facilities, functions and services that form part of the Booking Services and/or the Portal.
4.8 Except as specifically stipulated in this Agreement, we shall not be responsible for providing or achieving any particular results or outcomes or within a particular time.
4.9 We do not warrant that the Booking Services and the Portal shall be compatible with all Material.
4.10 Except where expressly stated in this Agreement, we exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Booking Services and the Portal.
5. YOUR OBLIGATIONS
5.1 In order for you to place and submit a Booking and/or otherwise use the Booking Services and the Portal, you must provide to the Portal such data, information and other Material and assistance as we may require for such purposes from time to time, and you must ensure that all such data, information and other Material is accurate, complete and up-to-date. We shall not be responsible or have any Liability for any errors or omissions in any such data, information and/or other Material and, as such: (i) the relevant User is responsible (on your behalf) for carefully entering and checking all such data, information and other Material (as no checking by us takes place); and (ii) you bear sole responsibility and Liability for any such data, information and/or other Material being inaccurate, incomplete or out of date and for the resulting consequences, including any price changes or refusal of transport. In providing any such data, information or other Material, you hereby acknowledge and agree that we shall copy, exploit, process, store, transmit and otherwise use such data, information and other Material (whether personal or non-personal) only for the purposes of and to the extent required for:
5.1.1 providing the Booking Services and facilitating the Booking;
5.1.2 managing our relationships with you and/or Carriers;
5.1.3 administering and protecting our business, the Portal Website, any other Portal, the Booking Services and/or any of our other related products and services (includingtroubleshooting, data analysis, testing, system maintenance, support, reporting and hosting of data);
5.1.4 delivering relevant content to you and measuring or understanding the effectiveness of the content we deliver to you;
5.1.5 using data analytics to improve the Portal Website, any other Portal, the Booking Services and/or any of our other related products and services;
5.1.6making suggestions and recommendations to you about products or services that may be of interest to you; and
5.1.7 generating, using and sharing aggregated, anonymised data such as statistical or demographic data for any purpose(s) relating to the Portal Website, any other Portal, the Booking Services and/or any of our other related products or services.
5.2 You must:
5.2.1 report any faults or suspected faults with or in the Booking Services and/or the Portal to us immediately upon discovery;
5.2.2 report to us any abuse of the Internet (including spam, hacking and phishing) that you consider to have taken place through the use of the Booking Services and/or the Portal by any person, and you must include in such report as much information as you are able to provide to us relating to the type of abuse that you have witnessed;
5.2.3 ensure that you fully co-operate with, and make yourself available at all reasonable times for discussion and meetings with, us, including in order to enable us to carry out fully, accurately and promptly our obligations under this Agreement;
5.2.4 not submit to us anything which in any respect may infringe the Intellectual Property Rights or privacy or other rights of us or any third party;
5.2.5 promptly provide us with all such data, information and other Material and assistance that shall enable us to carry out fully, accurately and promptly our obligations under this Agreement;
5.2.6 have all necessary rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
5.2.7 comply with all applicable laws, statutes, regulations and by-laws in relation to the exercise of your rights and performance of your obligations under this Agreement.
5.3 You must not in any way use the Portal, or submit to us or the Portal, anything which in any respect:
5.3.1 is in breach of any law, statute or regulation of any applicable jurisdiction;
5.3.2 is fraudulent, criminal or unlawful;
5.3.3 is inaccurate or out-of-date;
5.3.4 is obscene, indecent, vulgar, discriminatory, offensive, threatening, defamatory or untrue;
5.3.5 is in contravention of any applicable law, nor allow or assist any third party in doing so;
5.3.6 impersonates any other person or body or misrepresents a relationship with any person or body;
5.3.7 may infringe or breach the copy or Intellectual Property Rights of any third party;
5.3.8 may be contrary to our interests;
5.3.9 is contrary to any specific rule or requirement that we may stipulate for the Services; or
5.3.10 involves your use, delivery or transmission of any viruses, unsolicited communications, Trojan horses, trap doors, cancelbots, back doors, worms, Easter eggs, time bombs or computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any data, personal information or system.
5.4 You must not use any automated means to access the Portal or collect any information, data or other materials (including data and information about Carrier Services) from it unless we explicitly agree in writing to allow you to do so.
5.5 It is your responsibility to ensure that the Portal is sufficient and suitable for your purposes and meets your individual requirements. It is your responsibility to ensure that your access and use of the Portal and the Booking Services is in your best interests, and you bear sole responsibility and Liability for the consequences of your access and use of the Portal and the Booking Services.
5.6 It is your responsibility to ensure that you provide us with all data, information and other Material and assistance required to enable us to properly make the Portal available to you and to perform our obligations under this Agreement. We shall not be responsible or have any Liability for any failure to make the Portal available or to perform our obligations under this Agreement to the extent caused by your failure to properly ensure the provision of any data, information and/or other Material or assistance required to us.
5.7 Access to the Booking Services, an Account and/or the Portal may be suspended or withdrawn to or from you or all Users temporarily or permanently at any time without notice. We may also impose restrictions on the length and manner of usage of any part of the Portal and/or the Booking Services or access for any reason. If we impose restrictions on you, you must not attempt to use the Booking Services, your Account or the Portal under any other name or user.
5.8 You are only able to receive data and information about Carrier Services by providing all of the required data, information and other Material referred to in Clause 5.1 to the Portal. Any data and information about Carrier Services that you receive as a result is either provided to us or made accessible or available to us for collection by the relevant Carriers and then passed on by us to you. Whilst we endeavour to ensure that all such data and information about Carrier Services and all other data, information and other materials provided or otherwise made accessible or available to you on the Portal (except for any data, information and other Material provided by you or on your behalf to the Portal) are correct, no warranty or representation, express or implied, is given that they are complete, accurate, up-to-date and/or fit for a particular purpose and, to the fullest extent permitted by law, we shall not have any responsibility or Liability for any errors or omissions in any such data, information or materials or for the resulting consequences, including any adjustments required to any pricing information which turns out for any reason (whether under Clause 5.1, this Clause 5.8 or any other of these Terms and Conditions) to be in any way inaccurate.In preparing, placing and submitting any Booking via the Portal, you agree and acknowledge that:
5.8.1 only when the contract between you and the Carrier is concluded on the basis of the relevant Carrier Terms (i.e.at the latest when the goods in question are made available by you at the relevant airport in accordance with the provisions of transport law) will the prices for the relevant Carrier Services finally be calculated, so that the prices are only bindingly agreed between you and the Carrier at that point in time; and
5.8.2 the display of any prices on the CargoBooking platform are therefore only indicative, non-binding, preliminary calculations on the basis of: (i) whatever data, information and other Material has been provided by you or on your behalf; and (ii) whatever data and information has beenprovided to us or made accessible or available to us for collection by the relevant Carrier.
6. CARRIER SERVICES
6.1 In order to submit a Booking via the Portal to the relevant Carrier that shall be providing Carrier Services for that Booking, you must already be a recognised customer of and have an established credit line with that Carrier and be able to comply with the Carrier Terms of that Carrier as a result. In submitting any Booking to the relevant Carrier via the Portal, you warrant that you: (i) area recognised customer of and have an established credit line with that Carrier; and (ii) have read and understood and that you acknowledge, accept and agree to the Carrier Terms of that Carrier. We shall not have any Liability in respect of any Carrier Terms or the placing and submitting of any Booking, including any failure by you or the relevant Carrier to comply with the relevant Carrier Terms or to honour the terms of any Booking (including any failure by the Carrier to honour any related price).
6.2 For the avoidance of any doubt, we accept Liability in accordance with Clause 9 in respect of the Booking Services only. Your placing and submitting of a Booking with any Carrier and your access to, and the availability and use of, any Carrier Services is subject to the relevant Carrier Terms and accordingly any liability arising out of or in connection with any Booking or Carrier Services shall be between you and the relevant Carrier under and in accordance with the relevant Carrier Terms.
6.3 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with:
6.3.1 any breach of any warranty given by you under these Terms and Conditions and/or any other breach by you or any User of these Terms and Conditions;
6.3.2 any breach, negligent performance or non-performance by you or the Carrier of any Carrier Terms or the Carrier Services;
6.3.3 any amendment or cancellation of the Carrier Services or failure to arrive at the appropriate place and time for receipt of the Carrier Services; and/or
6.3.4 any claim made against us by any third party arising out of the Carrier Services in respect of which you have submitted a Booking to the relevant Carrier via the Portal.
6.4 By submitting a Booking, you also warrant, acknowledge and agree that:
6.4.1 you shall:
6.4.1.1 comply with (and procure that all owners/consignors of cargo carried on any aircraft shall observe and comply with) all laws, rules and regulations (including customs, police and public health regulations) and other applicable requirements in respect of the carriage of goods;
6.4.1.2 promptly provide to the relevant Carrier any information it may reasonably require regarding goods to be carried aboard any aircraft and the value of such goods and shall at its own expense comply (and procure compliance by all owners/consignors of cargo carried on any aircraft) with all of the relevant Carrier’s guidelines and instructions with regard to the packing of goods, delivery of cargo to and their collection from any aircraft as well as all applicable legal requirements in relation to their carriage by any aircraft or Carrier;
6.4.1.3 ensure the relevant Carrier provides you with an airwaybill prior to the loading of any goods aboard any aircraft for carriage, listing in detail the nature and weight of such goods. If any of the provisions of the Warsaw Convention 1929 (as amended by the Hague Protocol 1955 or any revision thereof, if applicable) applies to their carriage by any aircraft, you shall not permit any goods to be tendered for carriage unless an airwaybill in respect of such goods has been procured and duly completed in compliance with the documentary requirements of such Convention and applicable IATA guidelines;
6.4.1.4 produce, before the commencement of any carriage of goods by any aircraft or Carrier, any licences, permits, certificates or authorisations required for the carriage of the goods and ensure full compliance with the terms and conditions thereof;
6.4.1.5 not knowingly permit to be loaded (and shall use all reasonable endeavours to avoid the same being loaded) on any aircraft, without the prior written consent of the relevant Carrier and without having first provided the relevant Carrier in writing full details thereof: (i) any whole animals living or dead; (ii) any ‘dangerous goods’ as described in the IATA Dangerous Goods Manual; or (iii) any other goods, materials or items of cargo which could reasonably be expected to cause damage to any aircraft;
6.4.1.6 not knowingly permit to be loaded (and shall use all reasonable endeavours to avoid the same being loaded) on any aircraft any illegal item or substance or any item or substance that requires special handling; and
6.4.1.7 in relation to the carriage of any cargo, comply with all applicable UK Government security regulations concerning carriage of goods by air, ensure that all such carriage is conducted in line with all applicable IATA standards and shall provide the relevant Carrier with the appropriate documentation (consignment security certificate) if goods are presented as ‘known cargo’ (‘known cargo’ meaning cargo which is received from a known consignor together with a consignment security certificate, where such cargo is prepared and transported in accordance with the security controls set out by the UK Department of Transport);
6.4.2 should there be any subsequent changes to the nature and extent of the Carrier Services that you require after you have submitted your Booking (including the nature, size and scale of the cargo), you shall bear sole responsibility and Liability for any additional charges that may be raised by the Carrier in accordance with the relevant Carrier Terms, reflecting the fact that those requirements do not match that detailed in the Booking, in addition to any further changes that may be required in accordance with the relevant Carrier Terms; and
6.4.3 you shall comply with the relevant Carrier Terms as applicable to your Booking. If you fail to comply in any way with this Clause 6.4, it may result in additional charges being raised by the Carrier in accordance with the relevant Carrier Terms, delays and/or cargo not being permitted to travel upon arrival at the relevant airport.
6.5 Further and in addition to Clauses 5.8 and 6.2, you acknowledge and agree that, in preparing, placing and/or submitting a Booking via the Portal:
6.5.1 there is no guarantee of availability for the Carrier Services in question. In the event of any non-availability of any air cargo capacity and/or route, whether before or after you have submitted your Booking, it is the relevant Carrier’s responsibility to promptly advise you of any such non-availability and what alternatives, rights or remedies you may have under and in accordance with the relevant Carrier Terms, and we shall have no responsibility or Liability for:
6.5.1.1 any such non-availability; or
6.5.1.2 any failure by the Carrier to promptly advise you in any respect of any such non-availability and/or any such alternatives, rights or remedies,
or any consequences arising therefrom and you hereby agree and acknowledge that you and/or the Carrier shall bear responsibility and Liability for all associated costs and risks in accordance with the relevant Carrier Terms; and
6.5.2 we have no operational control over Carrier Services, including any cancellations, any schedule and other changes and any other adverse impacts and occurrences, all of which may occur at short notice. It is the relevant Carrier’s responsibility to promptly advise you of any and all such cancellations, changes, impactsand occurrences and what alternatives, rights or remedies you may have under and in accordance with the relevant Carrier Terms, and we shall have no responsibility or Liability for:
6.5.2.1 the actions or omissions of any Carrier, or in respect of the performance, negligent performance, or failure in performance, of any Carrier Services;
6.21.2 any changes in the Carrier Services, including to any price, capacity or route modifications, any interruptions of services or delays in departures and arrivals or any incongruence of arrivals, departures or movement of Carriers;
6.2.1.3 any delays with respect to the fulfilment of the Carrier Services or cancellation of the Carrier Services;
6.2.1.4 any fulfilment of any additional requirements of you, your customer or the Carrier, including customs declarations and other requirements of border control or the importing or exporting of goods and/or services;
6.2.1.5 any other adverse impact or occurrence experienced by you in relation to the Carrier Services (including any loss of or damage to goods, any goods not being accepted for carriage or transport by any given Carrier, the dimensions of any goods not fitting any particular aircraft serving any required route, or the dimensions, nature, quantity, type or weight of any goods being different in any respect or way to that booked); or
6.5.2.6 any failure by the Carrier to promptly advise you in any respect of any such cancellation, change, impact or occurrence and/or any such alternatives, rights or remedies,
or any consequences arising therefrom and you hereby agree and acknowledge that you and/or the Carrier shall bear responsibility and Liability for all associated costs and risks in accordance with the relevant Carrier Terms.
7. FEES
7.1 Access to the Booking Services and the Portal, and registration for an Account, is currently free of charge.
7.2 If you place and submit a Booking via the Portal, you must pay the amount owing to the relevant Carrier relating to that Booking (whether using the functionality available through or via the Portal or otherwise) under and in accordance with the relevant Carrier Terms (whether that is at the time you place and submit your Booking and/or otherwise).
7.3 All prices listed on the Portal for Carrier Services are exclusive of any applicable VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
7.4 If you wish to amend any Booking once placed and submitted, you must contact the relevant Carrier directly and request any such amendments in good time prior to the departure of the relevant aircraft under and in accordance with the relevant Carrier Terms, since:
7.4.1 a User can only complete an initial Booking on the CargoBooking platform. Any subsequent change of that Booking once confirmed (whether in relation to the applicable route, the applicable departure date or timing,the applicable dimensions, nature, quantity, type or weight of any goods or otherwise) is not possible on the CargoBooking platform; and
7.4.2 late cancellations of any Booking and/or late changes to any Booking may incur late cancellation or amendment charges from certain Carriers under and in accordance with the relevant Carrier Terms, and any such changes shall also be subject to the additional charges applicable to any new Carrier Services you require under and in accordance with the relevant Carrier Terms.
8. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in our CargoBooking platform, the Website Portal, any other Portal, the Booking Services and any of our other related products and services throughout the world belong to us (or our licensors) and the rights in our CargoBooking platform, the Website Portal, any other Portal and the Booking Services are licensed (not sold) to you. You have no intellectual property rights in, or to, our CargoBooking platform, the Website Portal, any other Portal or the Booking Services other than the right to use them in accordance with this EULA, and you shall treat any and all data, information or other Material of any particular provider of air cargo carrier services, which is made accessible or otherwise available to you via our CargoBooking platform, the Website Portal, any other Portal and/or the Booking Services, as commercially sensitive or otherwise confidential in nature and, as such, with the same degree of confidentiality, secrecy and security as you would your own confidential data or information.
9. LIMITATION OF LIABILITY
9.1 This Clause 9 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
9.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any services in connection with this Agreement; or
9.1.2 otherwise in relation to this Agreement or entering into a contract under this Agreement.
9.2 Neither Party excludes or limits its Liability for:
9.2.1 fraud or fraudulent misrepresentation;
9.2.2 death or personal injury caused by negligence;
9.2.3 any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
9.2.4 any other Liability which cannot be excluded or limited by applicable law.
9.3 Subject to Clause 9.2, and other than in respect of any Liability arising pursuant to this Agreement, we do not accept, and we hereby exclude, any Liability for Breach of Duty.
9.4 Subject to Clause 9.2, we shall not have any Liability in respect of any:
9.4.1 indirect or consequential losses, damages, costs or expenses;
9.4.2 loss of actual or anticipated profits;
9.4.3 loss of contracts;
9.4.4 loss of use of money;
9.4.5 loss of anticipated savings;
9.4.6 loss of revenue;
9.4.7 loss of goodwill;
9.4.8 loss of reputation;
9.4.9 loss of business;
9.4.10 ex gratia payments;
9.4.11 loss of operation time;
9.4.12 loss of opportunity;
9.4.13 loss caused by the diminution in value of any asset; or
9.4.14 loss of, damage to, or corruption of, data; whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred,
whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of any doubt, Clauses 9.4.2 to 9.4.14 (inclusive) of this Clause 9.4 apply whether such losses are direct, indirect, consequential or otherwise.
9.5 Subject to Clauses 9.2, 9.3 and 9.4, our total aggregate Liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of: (i) £5000; or (ii) the actual proceeds received by us under our relevant insurance policy or policies in respect of the Liability in question.
9.6 The limitation of Liability under Clause 9.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
9.7 You acknowledge and accept that we only make the Portal and the Booking Services available on the express condition that we shall not be responsible, nor shall we have any Liability, directly or indirectly, for any act or omission of you, your affiliates or your or their employees, agents, contractors or customers, or any third party (including Carriers).
10. TERMINATION
10.1 This Agreement shall continue in force until we close your Account.
10.2 We may terminate this Agreement with immediate effect at any time by giving notice to you, except where you are in breach of this Agreement, in which instance we may terminate this Agreement at any time without notice.
10.3 In the event that this Agreement terminated:
10.3.1 you shall cease to have access to the Booking Services, your Account and the Portal; and
10.3.2 the accrued rights, remedies, obligations and liabilities of us and you as at cancellation or termination shall not be affected, including the right to claim damages for any breach of this Agreement which existed at or before the date of cancellation or termination.
10.4 Termination of the Agreement shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. WAIVER
A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. SEVERANCE
14.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
14.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. ASSIGNMENT
You must not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
16. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. NOTICES
18.1 Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier,or sent by email to the other party's email address notified by that party for such purposes.
18.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 18.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.A notice sent by email shall be deemed to have been received on the next Business Day after transmission.
18.3 The provisions of this Clause 18 shall not apply to the service of any proceedings or other documents in any legal action.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
19.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation.