Last revised September 4, 2023
1. Acceptance of Terms.
1.1 Terms. Kayo3PL (“Kayo3PL,” “we,” or “our”)
provides Services (as defined below) to you (“you,” “your,” or “Merchant”)
through our website at Kayo3pl.com (“Site”) and the Kayo3PL Platform (as
defined below), subject to these Terms of Service, the Policies (“Policies”),
and the Pricing and Billing policies (“Fees”), all of which are incorporated by
reference (collectively, the “Agreement”).
1.2 Acceptance. By accepting this Agreement either by clicking through on our
Site or by accessing or using the Services, you acknowledge that you have read,
understood, and have the legal capacity or authority to agree to be bound by
this Agreement. The terms of your Order (as defined below) shall not modify
this Agreement.
1.3 Changes. Kayo3PL may change these Terms of Service, the Policies and Fees
from time to time at its discretion. Any changes to these Terms of Service are
effective immediately upon publication on our website or send you email
notification of such changes (“Notice”).
All other changes to existing Fees shall be effective thirty (30) days
after we provide Notice. Your use of the Services thereafter shall constitute
full acceptance of any revisions or changes to this Agreement or the Fees. If
any change to the Terms of Service, Policies, or Fees are unacceptable to you,
your only remedy is to stop using the Services and send a cancellation email to
support@kayo3pl.com.
2. Registration.
You must register for the Services. As part of
the registration process, you will identify an administrative username and
password for your account (“Account”) on the Kayo3PL Platform (as defined
below) and you may create additional standard users (each with a user
password).
3. Description of Services.
Kayo3PL shall provide the services (the
“Services”) described below. All Exhibits attached to or issued under this
Agreement are hereby incorporated into and made a part of this Agreement.
Services: Services shall include, without
limitation, the provision of fulfillment services, and other related incidental
services as determined by Kayo3PL in their sole discretion, and subject to
change without prior notice to Client.
4. Carriers.
4.1 Carrier Relationships. You understand and
agree that the Kayo3PL connects you with Carriers who are responsible for the
actual shipping of your Goods. Kayo3PL shall use our proprietary technology to
find the best available shipping option with a Carrier based upon the
dimensions, desired speed, and final destination of the Order. Kayo3PL is not a
carrier and does not ship your Goods, nor do the Services include any shipping
services. To the extent that Kayo3PL does arrange for the transportation of
shipments of Goods by Carriers, Kayo3PL’s performance will be in the capacity
of a property broker (USDOT# 4112790 and MC 01571239), such other license or
permit as may be required, or as Merchant’s agent.
4.2 Carrier Claims. Kayo3PL will help facilitate the filing of claims with
Carriers for Goods that are lost or damaged by a Carrier, but Kayo3PL is not
responsible for any loss or damage caused by a Carrier.
4.3 Carrier Performance. Kayo3PL will use commercially reasonable efforts to
facilitate each Carrier’s agreement that such Carrier: (a) has the necessary
approvals, authorities, licenses, and insurance to provide the shipping
services; (b) will comply with all federal, state, provincial, and local laws,
regulations, and ordinances including, but not limited to, safety laws and
regulations and (c) will maintain insurance as required by law. Notwithstanding
the foregoing, Kayo3PL will not assess or guarantee the suitability, legality,
or ability of any Carrier. You agree that Kayo3PL is not responsible or liable
for the Carriers’ performance of the shipping services and you agree that Kayo3PL
does not guarantee any Carriers’ compliance with applicable laws or regulations.
4.4. Shippable Addresses. You are solely responsible for the accuracy and
deliverability of Order shipping addresses. Kayo3PL has no obligation to verify
any shipping addresses provided by you and reserves the right to put the Order
on hold if addresses cannot be validated. If Kayo3PL provides an Order shipping
estimate based on an address later discovered to be inaccurate, incomplete, or
undeliverable for any reason you are solely responsible for any applicable
address correction fees, any difference in Carrier shipping cost, costs for
return transportation, and any other costs. Examples of discrepancies for which
you are responsible include, but are not limited to, incomplete addresses,
incorrect addresses, undeliverable addresses, commercial/residential address
status, and rural address status.
5. Access to and Use of the Services.
5.1 Kayo3PL Intellectual Property. Any software
made available to you by Kayo3PL in connection with the Services (“Software”),
including but not limited to the Kayo3PL Platform, contains Kayo3PL’s
proprietary and confidential information that is protected by applicable
intellectual property laws and this Agreement. Kayo3PL grants you a
non-transferable, non-sublicensable, and non-exclusive right and license
(“License”) to use the Software solely in connection with the Services,
provided that you shall not (and shall not allow any third party to) copy,
modify, create a derivative work of, reverse engineer, reverse assemble, or
otherwise attempt to discover any source code or sell, assign, sublicense, or
otherwise transfer any right in any Software. You agree not to access the
Services by any means other than through the interface that is provided by
Kayo3PL. Any rights not expressly granted herein are reserved and no license or
right to use any trademark of Kayo3PL or any third party is granted to you in
connection with the Services. The License may be terminated immediately at
Kayo3PL’s sole discretion and shall, in any event, terminate upon the
termination or expiration of this Agreement.
5.2 Your Content.
5.2.1. You are solely responsible for all
data, information, feedback, suggestions, text, content, and other materials
that you upload, post, deliver, provide, or otherwise transmit to Kayo3PL in
connection with your use of the Services, excluding data and information
relating to the operation and/or performance of the Kayo3PL Platform (“Your
Content”). You retain all right, title and interest in and to Your Content,
other than the limited rights expressly granted to Kayo3PL in this Agreement.
Kayo3PL has the right, but not the obligation to monitor Your Content. You
further agree that Kayo3PL may remove or disable Your Content at any time for
any reason.
5.2.2. You own all of Your Content or have obtained all permissions, releases,
rights, or licenses required to engage in your posting and other activities
(and to allow Kayo3PL to perform our obligations) in connection with the
Services. Your Content does not, and will not, violate, infringe, or
misappropriate any third party’s intellectual property or privacy rights, nor
does Your Content contain any matter that is defamatory, obscene, unlawful, threatening,
abusive, tortious, offensive, or harassing.
5.3 Use and Modification of Your Content. You grant Kayo3PL a worldwide,
non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable,
and transferable right and license to (i) copy, use, modify, distribute,
display, and disclose Your Content solely to the extent necessary to provide
the Services to you pursuant to the Agreement, (ii) copy, modify and use Your
Content in connection with internal operations and functions, including, but
not limited to, operational analytics and reporting, financial reporting and
analysis, audit functions, and archival purposes and (iii) copy, use, modify,
distribute, display, and disclose Your Content on an aggregate and anonymous
basis for marketing and other purposes.
5.4 Account Confidentiality. You are solely responsible for maintaining the
confidentiality of your login, password, Your Content, Account, and for all
activities that occur under your login or Account. For support purposes,
designated Kayo3PL employees have the ability to access your Account.
5.5 Security Acknowledgment. You understand that the operation of the Services,
including Your Content, may be unencrypted and may involve (i) transmissions
over various networks; (ii) changes to conform and adapt to technical
requirements of connecting networks or devices; and (iii) transmission to
Kayo3PL’s third-party vendors and hosting partners to provide the necessary
hardware, software, networking, storage, and related technology required to operate
and maintain the Services. Accordingly, you acknowledge that you bear sole
responsibility for adequate security, protection, and backup of Your Content.
Kayo3PL will have no liability to you for any unauthorized access or use of any
of Your Content, or any corruption, deletion, destruction, or loss of any of
Your Content.
5.6 Maintenance and Security of Equipment. You shall be responsible for
obtaining and maintaining any equipment and ancillary services needed to
connect to, access, or otherwise use the Services, including hardware,
software, networks, and telephone service. You shall also be responsible for
maintaining the security of your equipment and ancillary services, your
Account, passwords (including but not limited to administrative and user
passwords), files, and for all uses of your Account or your equipment and
ancillary services.
5.7 Restricted Access to Kayo3PL Facilities. As your Goods may be commingled
with the Goods of other merchants, you are not permitted to enter Kayo3PL’s
Facilities or access your Goods while stored at a Kayo3PL Facility, without
prior express written consent by Kayo3PL. If you are granted access, you will
be required to sign a liability waiver, you will be monitored during the access
period and your access can be terminated at Kayo3PL’s discretion.
5.8 Publicity Rights. Kayo3PL reserves the right to use your name and/or
company name as a reference for marketing or promotional purposes on the Site
and in other communication with existing or potential merchants. To decline Kayo3PL
this right you need to email support@kayo3pl.com stating that you do not wish
to be used as a reference.
5.9 Technical Support. Kayo3PL may provide, at Kayo3PL’s sole discretion,
technical support services, through email, chat, or telephone in accordance
with your selected account management support.
6. Merchant Obligations and Warranties.
6.1 Use of Services. Subject to the terms and
conditions of this Agreement, you may access and use the Services only for
lawful purposes. All rights, title, and interest in and to the Services
(including all intellectual property rights) will remain with and belong
exclusively to Kayo3PL. You shall not: (i) sublicense, resell, rent, lease,
transfer, assign, timeshare, or otherwise commercially exploit or make the
Services available to any third party; (ii) use the Services in any unlawful
manner (including without limitation in violation of any data, privacy, or
export control laws) or in any manner that interferes with or disrupts the
integrity or performance of the Services; or (iii) modify, adapt, or hack the
Services, or otherwise attempt to gain unauthorized access to the Services or
related systems or networks. You shall comply with any codes of conduct,
policies, or other notices Kayo3PL provides you or publishes in connection with
the Services, and you shall promptly notify Kayo3PL if you learn of a security
breach related to the Services.
6.2 OFAC Representation. You represent and warrant that you are not (a) located
in, or a national or resident of, any country that is subject to U.S. trade
sanctions administered by the U.S. Treasury Department’s Office of Foreign
Assets Control (“OFAC”) that prohibit the export of U.S. services, or (b) a
person or entity named on OFAC’s List of Specially Designated Nationals and
Blocked Persons (the “SDN List”) or acting on behalf of any person or entity on
the SDN List. You agree to comply with these laws and regulations and to inform
Kayo3PL promptly of any obstacle to such compliance.
6.3 Shipping. It is Merchant’s expressly assumed obligation to ensure that all
Merchant documentation specifically, separately, and correctly address any
Legal Requirements (as defined below) related to Merchant’s Goods, the shipping
requirements applicable to the Goods, and the instructions required by Merchant
that arise under this Agreement which apply to Merchant. The term “Legal Requirements” shall mean all
present and future laws, statutes, ordinances, requirements, orders, directions,
rules, and regulations of any kind or nature, whether statutory or common law,
including, without limitation, all environmental and safety laws, issued or
enforced by any federal, state, provincial, or local authority or agency, which
governs or applies in any way to the Goods provided by Merchant or the shipping
requirements applicable to the Goods that arise under this Agreement. To the extent there are Legal Requirements or
requirements for storage or handling related to Merchant’s Goods about which
Kayo3PL must know and with which it must comply in order to properly perform
the Services or otherwise meet its obligations under and pursuant to this
Agreement, Merchant shall make Kayo3PL aware of any and all such Legal
Requirements in writing no less than sixty (60) days prior to the enactment of
such Legal Requirements, particularly to the extent such Legal Requirements
relate specifically to the safeguarding, receiving, storing, and handling of
Merchant’s goods. Moreover, in the event
and to the extent compliance with any Legal Requirement(s) either, prevents
Kayo3PL from performing the Services, or materially increases Kayo3PL’s cost(s)
to perform such Services, all in accordance with the terms of the Agreement,
Kayo3PL shall be excused from such performance without sustaining any liability
therefor.
6.4 Client Code of Conduct. Merchant agrees to abide by our Client Code of
Conduct as outlined as follows:
It is important that this respectful relationship is two-way.
Here is how we expect to be treated by clients, whether we are meeting face
to face, in groups or individually, or talking on the phone, in emails or
social media.
We ask our clients to:·
Please show staff respect and courtesy·
Be responsible and honest·
Work with us to find solutions to
problems·
Respond to our queries within a
reasonable timeframe·
Help us to provide the best service we
can·
Keep all information confidential
We will not tolerate:·
Swearing or racist, sexist, homophobic
or otherwise offensive language·
Any form of harassment,
verbal/physical abuse or personal attack·
Aggressive, intimidating, threatening
or violent words or behavior·
Unfair blame for things outside of our
control·
Defamation of our company or staff
online or offline
Kayo3PL reserves the right to take swift and appropriate action should any
employee or representative violate this code.
7. Your Goods.
7.1 Representations, Warrants, and Covenants.
You represent, warrant, and covenant that: (i) you have the legal power to
enter into and perform your obligations under this Agreement and the person
binding you to this Agreement on your behalf has been duly authorized to do so;
(ii) you are the legal owner of the Goods, including any underlying
intellectual property, and/or have lawful possession of the Goods and have the
sole legal right to store and thereafter direct the release and/or delivery of
the Goods, (iii) your Goods do not violate Kayo3PL’s Acceptable Products Policy
or any applicable laws, including without limitation the Food, Drug and
Cosmetic Act (as amended); (iv) there are no potential health, safety, or
environmental hazards associated with the shipment, warehousing, or fulfillment
of the Goods; (iv) the Goods are not mislabeled, misbranded, adulterated,
flammable, hazardous or dangerous materials, explosives, or pesticides as
defined under applicable law; (v) the Goods are in compliance with Kayo3PL’s
Dangerous Goods / HAZMAT Policy; and (vi) your activities related to the
promotion, sale and distribution of the Goods comply with all applicable laws.
You will strictly meet or exceed any compliance obligations under these
provisions. Kayo3PL may reject Goods, in its sole discretion, if they do not
meet the above compliance obligations. Rejected Goods may incur additional fees
and/or result in a delay or non-shipment for which Kayo3PL shall not be liable.
7.2 Import Compliance. You shall comply with all applicable laws and
regulations and bear all costs and responsibilities of importing your Goods
into a respective country or territory. Unless written approval by Kayo3PL has
been obtained, you shall deliver the Goods Delivered Duty Paid (DDP) to
Kayo3PL’s Facility location, be the importer of record and payer of all
customs, duties, taxes and other charges in connection with the importation and
delivery of the Goods. You shall identify yourself on the bill of lading as the
“named consignee, in care of “Kayo3PL,” and shall not identify Kayo3PL as the
consignee, importer of record or the merchant of record. Beneficial title and
interest to all Goods shall always remain with you, even when the Goods are
stored at a Kayo3PL Facility.
7.3 Warehouseman’s Lien. You agree and acknowledge that the Kayo3PL Facilities
shall maintain an actual or constructive general and continuing warehouseman’s
lien and security interest under the UCC for all Goods in such Kayo3PL
Facility’s possession or control, regardless of whether a specific receipt is
issued, to cover all charges, expenses, costs, and Service Fees set forth in
this Agreement. In the event a Kayo3PL Facility is required to exercise a lien
or security interest, you shall be responsible for all necessary and reasonable
costs incurred to enforce the lien or security interest including, but not
limited to, reasonable attorneys’ fees. You will execute any and all agreements
and documents so that the Kayo3PL Facility may obtain, perfect, and maintain
the lien rights and security interest in the Goods. You will also execute any
and all documentation to permit Kayo3PL to perfect the liens.
7.4 No Inspection of Goods Disclaimer. Kayo3PL does not inspect your Goods nor
does Kayo3PL take responsibility for the business decisions that you make and
implement through the Services.
8. Service Fees.
8.1 Fees. “Fees” are the fees for any Services
and any third-party fees (third-party fees include, but are not limited to,
Carrier, and other shipping fees, rates of duty, international brokerage
charges, freight charges, insurance premiums, or other third-party charges
incurred during your use of the Service).
8.2 List of Fees. Unless otherwise specified, you shall pay the Fees provided in
the Price List presented during onboarding.
8.3 Currency conversion. Currency rates fluctuate on a daily basis, the
currency exchange used for invoicing will be at the sole discretion of Kayo3PL.
8.4 Pricing Quotations. Pricing quotations are estimates based on the best
information available at the time made. All dollar amounts stated in this
Agreement and the Site will be in the currency chosen during onboarding, unless
otherwise specified. The final rates and Service Fees may vary based upon the
Goods actually tendered, the work actually performed, or a number of factors
such as Carrier shipping prices, the actual characteristics of your Goods, the
delivery address, and service requested during the normal course of delivery.
Kayo3PL reserves the right to bill the Service Fees based on actual charges at
any time after the Services are rendered. Kayo3PL specifically disclaims
liability for any Carrier shipping rate errors due to inaccurate or incomplete
information, such as dimensions and weights.
8.5 GRI and Carrier Surcharges. Kayo3PL
may pass through to you any General Rate Increases (GRI) or surcharges charged
by Carriers, including but not limited to fuel, dangerous goods, and peak
season surcharges, without any notice.
8.6 Reimbursement of Taxes, Chargebacks, and Related Fees. You acknowledge that
you are responsible for, and agree to reimburse Kayo3PL and Carriers, as
applicable, for, all sales taxes, transportation taxes, Service Fees,
reversals, chargebacks, claims, fees, fines, penalties and other liability
incurred by Kayo3PL and Carriers, as applicable in connection with the
Services.
8.7 Exclusive of International CDT and Transaction Taxes. Customs, Duties, and
Taxes (“CDT”) on any international shipment charged by a Carrier are your sole
responsibility and will be charged back to you regardless of whether they were
or were not in the initial estimate, or whether the Order was or was not
delivered. You acknowledge and agree that all Service Fees, charges, and any
other amounts charged by Kayo3PL to you are exclusive of applicable value
added, sales/use or inventory, CDT, and service taxes (“Transaction Taxes”)
which may be levied in connection with the Services. Where applicable, you
shall pay all Transaction Taxes and indemnify Kayo3PL from all claims and
liability arising from such Transaction Taxes.
9. Payment Methods and Abandoned Accounts.
9.1 Payment Options. Kayo3PL provides you the
convenience to pay for your invoices online using the following payment
methods: bank transfer & ACH (free), credit card (subject to additional
service fees), PayPal (subject to additional service fees) or a wire transfer (subject to standard bank
fees).
9.2 Notwithstanding anything to the contrary in this Agreement or the
associated Exhibits, Client agrees to provide a pre-authorized credit card for
Kayo3PL to hold on file (the “Credit Card”). Client hereby acknowledges and
agrees thatKayo3PL may charge the Client’s Credit Card at their sole
discretion, any time that the Client has an invoice or payment due. Kayo3PL
reserves the right to suspended services if pre-authorized credit card is
expired and a valid credit card is not provided within three (3) business days.
9.3 Client further acknowledges and agrees that Kayo3PL may request payments be
made in advance of providing services at any time in Kayo3PL’s sole discretion,
which shall be due immediately.
9.4 Kayo3PL shall invoice Client for all Services provided and for any expenses
incurred for the purposes of providing the Services. Invoices will be presented
to Client within 14 calendar days of the start of a new month and are payable
within ten (10) days after Client’s receipt of the invoice.
9.5 Client must ensure that all outstanding invoices are paid prior to
requesting further Services from KAYO3PL. KAYO3PL may choose, in KAYO3PL’s sole
discretion, to refrain from providing further Services to Client until all
outstanding invoices and amounts due are paid in full, without any liability to
Client.
9.6 Abandoned Account and Liquidation. Failure to promptly pay Service Fees is
a material breach of this Agreement. If your Service Fees (or any other amounts
owed to Kayo3PL or Carriers) remain unpaid for a period greater than thirty
(30) days, then Kayo3PL reserves the right, at our sole discretion, to
terminate this Agreement. If the Service Fees remain unpaid for a period
greater than sixty (60) days, then Kayo3PL will automatically reclassify your Account as an “Abandoned
Account.” TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN
ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND GOODS
WILL IMMEDIATELY BE FORFEITED BY YOU TO KAYO3PL. GOODS WILL BECOME IMMEDIATELY
AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. You
agree such Goods would be free and clear of liability, and that you would
assume any liability therefore. You will remain liable for any pending Service
Fees above and beyond the liquidation proceeds.
10. Onboarding.
10.1 Inbound Shipment Instructions. Prior to
any inbound shipment of Goods arriving at a Kayo3PL Facility, you must follow Kayo3PL’s
Advanced Receiving Notice (“ARN”) instructions to provide Kayo3PL with digital
bills of lading through the Kayo3PL Platform and schedule an appointment for
inbound freight shipments (non-parcel) prior to arrival at a Kayo3PL Facility.
All inbound shipments shall be properly labeled and clearly identify the units
and quantities of carton, case, or master case. You represent and warrant that
the information set forth on any shipment or delivery document, including,
without limitation, information as to count, weight, description, and condition
of the Goods, is accurate and complete and may be relied upon by Kayo3PL. Any
inbound inventory received that does not follow the ARN instructions as
determined by Kayo3PL, will be classified as an Advanced Receiving Compliance
Failure and subject delays and additional Fees.
10.2 Verification and Inspection. Per Kayo3PL’s operations and errors policy, Kayo3PL
may, at its sole discretion, verify the quantity of the Goods and inspect for
any damage. You acknowledge and agree that Kayo3PL has no obligation to verify
the quantity, content, condition, or quality of the Goods delivered for storage
and/or delivery. Kayo3PL may reject storing and/or delivering any Goods that Kayo3PL
deems, in its sole discretion, to be improperly labeled or packaged as a Compliance
Failure, or any Goods that contain any hazardous or illegal material.
10.3 Outstanding and Pending Orders. If there are any outstanding or pending
Orders that need to be fulfilled first, you shall notify Kayo3PL of the number
of Orders to be sent initially and the expected timeline of processing such
Orders. Kayo3PL reserves the right to adjust the timeline based on available
resources.
10.4 Receipt of Goods. Upon a ARN being marked as arrived within the Kayo3PL
system and the items in the ARN not having any issues that would cause a Compliance
Notice to be created, you can expect a maximum of three (3) business days for
Goods to be available to use for fulfilling orders at a Kayo3PL Facility. After
three (3) business days, your Orders will begin to be processed and labeled,
beginning with outstanding and pending Orders. These timelines are subject to
change during Peak Season (defined as the dates between and including November
1st and January 5th, but subject to change dependent upon Carriers) or other
holidays.
10.5 Processing of Orders. Kayo3PL shall label and ready the Orders for pick up
by Carriers within one (1) business day of actual receipt of the Order from you
provided that proper inventory amounts exist and there are no issues with the
Order. This provision shall not apply to Orders that are altered, Orders with
low inventory items, held Orders and bulk Orders.
10.6 Expected Date of Shipping Commencement. You shall provide Kayo3PL with an
expectation of the date for Kayo3PL to begin facilitating Carriers to ship your
Goods, which shall conform to the terms of this Agreement.
10.7 Accuracy of Information. You are solely responsible for the accuracy of
any information provided to Kayo3PL and/or inputted onto the Site or the Kayo3PL
Platform. You agree that Kayo3PL shall not be liable for any delay, loss,
damage or costs as a result of any inaccurate information provided by you to Kayo3PL
or any information inputted incorrectly by you onto the Site or the Kayo3PL
Platform.
11. Service Level Agreement.
11.1 Kayo3PL SLAs. Kayo3PL’s SLAs are
available to clients under a term contract. SLAs will not be provided to any
client not under term contract.
11.2 Peak Season SLA Increases. Kayo3PL’s SLAs are subject to increase during
Peak Season by notification. Kayo3PL may also increase SLAs based on volume.
11.3 SLA Exclusions. SLAs shall not
apply: (i) to Orders received on Kayo3PL Holidays, (ii) for Goods not currently
in stock; (iii) for improperly labeled Goods inventory; (iv) for Orders when
volume forecasts (for either orders or units) have not been timely provided or
for Orders when the volume per facility exceeds 20% of the thirty (30) day
average number of orders shipped from that facility; (v) to Orders received
during a force majeure event; (vi) cross-border shipments; (vii) to Orders
received when Merchant invoices are past due; (viii) to Orders received during
an inventory cycle count or additional physical inventories; (ix) when Merchant
has failed to provide updated or accurate information regarding its Goods on
the Kayo3PL Platform or to Kayo3PL; (x) data entry errors; (xi) when Orders are
materially affected by the negligent act or omission of a third-party under
Merchant’s actual or constructive control; and (xii) the first thirty (30) days
of fulfilling Orders.
12. Returns, Transfers and Disposal.
12.1 Returns. All non-Carrier related returns
(international and domestic) must follow the Return Policy, which may be
updated from time to time. You shall be solely responsible for any Fees and any
additional Carrier fees, including without limitation shipping, brokerage, or
returns processing fees, for Goods that are returned to Kayo3PL Facility for
any reason whatsoever. Custom returns may be rejected and/or subject to additional
fees.
12.1.1. Kayo3PL Is Not Liable for International Returns. International
shipments that are not delivered are often returned by the Carrier and assessed
return shipping, brokerage, and returns processing Carrier fees that are billed
through to you, often without notice. Kayo3PL will make reasonable efforts to
circumvent international returns or abandoned inventory at your request;
however, Kayo3PL reserves the right to charge you fees up to the value of the
original Carrier shipping cost, including all costs and expenses of returns. If
a tariff is not available, Kayo3PL will either put Orders on hold until tariff
information is available or override the Order with no liability to Kayo3PL.
12.2 Transfers between Kayo3PL Facilities. You agree that Kayo3PL may, in its
sole discretion, remove and transfer your Goods at any time for any reason,
including without limitation optimization of Kayo3PL’s fulfillment network, to
another Kayo3PL Facility.
12.3 Required Removal & Disposal. Kayo3PL may, at its sole discretion,
require you to remove unsuitable or unsellable Goods from a Kayo3PL Facility. Kayo3PL
will notify you if any inventory requires removal. Pick fees may also be
assessed for labor incurred to remove inventory. IF YOU DO NOT REMOVE THE INVENTORY
WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, KAYO3PL MAY
DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE. YOU SHALL NOT
BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF
BY KAYO3PL IF YOU DO NOT PROMPTLY REMOVE THE GOODS UPON KAYO3PL’S WRITTEN
REQUEST.
13. Confidentiality and Publicity.
13.1 Confidentiality Information. Kayo3PL and
Merchant have each developed certain confidential and proprietary information
(“Confidential Information”) including, but not limited to, financial
statements, financing documents, trade secrets, new products, copyrights,
computer software, documentation, specifications, systems, hardware, concepts,
designs, configurations, schedules, costs, performance features, techniques,
copyrighted matter, patentable and patented inventions, plans, methods,
drawings, data, tables, calculations, documents or other paperwork, computer
program narratives, flow charts, source and object codes, business and
marketing plans, dealings, arrangements, objectives and locations. Confidential
Information shall only include such information which is either explicitly
designated as “confidential” at the time of disclosure or by its nature is
reasonably identifiable as confidential. For purposes of this Agreement, a
party disclosing the Confidential Information is the “Discloser” and a party
receiving the Confidential Information is the “Recipient.” Confidential
Information shall not, however, include any information that Recipient can
establish: (i) was publicly known or made generally available without a duty of
confidentiality prior to the time of disclosure to Recipient by Discloser; (ii)
becomes publicly known or made generally available without a duty of
confidentiality after disclosure to Recipient by Discloser through no action or
inaction of Recipient; (iii) is in the rightful possession of Recipient without
confidentiality obligations at the time of disclosure by Discloser to Recipient
as shown by Recipient’s then-contemporaneous written files and records kept in
the ordinary course of business; or (iv) is independently developed by
Recipient without use of or reference to Discloser’s Confidential Information,
as shown by written records and other competent evidence prepared
contemporaneously with such independent development.
13.2 Disclosure of Confidential Information. Confidential Information disclosed
hereunder shall at all times remain, as between the parties, the property of
the Discloser. No license under any trade secrets, copyrights, or other rights
is granted by this Agreement or any disclosure of Confidential Information
hereunder. Recipient may disclose Confidential Information to its officers,
directors, employees, contractors, affiliates or representatives
(“Representatives”) who (i) are required to have the Confidential Information
in order for the Recipient to perform its obligations under these Terms of
Service, (ii) are informed of its confidential nature, and (iii) are subject to
confidentiality obligations at least as protective of the Confidential
Information as these Terms of Service. The Recipient shall take reasonable
measures to protect the secrecy of and avoid disclosure and unauthorized use of
the Confidential Information. Without limiting the foregoing, the Recipient
shall take at least those measures it employs to protect its own Confidential
Information of like importance, and shall use no less than a reasonable degree
of care in protecting such Confidential Information. The Recipient shall
promptly notify Discloser of any unauthorized use or disclosure, or suspected
unauthorized use or disclosure, of Confidential Information.
13.3 Injunctive Relief. The Recipient agrees that any violation or threatened
violation of this Agreement will cause irreparable injury to the Discloser,
entitling Discloser to obtain injunctive relief in addition to all legal
remedies without showing or proving any actual damage and without any bond
being required to be posted.
13.4 No Publicity Rights. Merchant shall not, without the prior express written
consent of Kayo3PL (a) issue any statement, printed material or other
communication acknowledging its relationship with Kayo3PL or its affiliates, or
(b) use Kayo3PL’s or its affiliates’ name or logo in any manner during and/or
after termination of Services.
13.5 Client agrees and undertakes to keep this Agreement, and all other
Exhibits and information associated with this Agreement, including without
limitation, information pertaining to pricing and special pricing
(“Confidential Information”), strictly confidential and shall not disclose any
part of this Agreement to any party, except for the purposes of seeking legal
advice.
14. Force Majeure.
Kayo3PL shall not be liable for default in the
performance or discharge of any duty or obligation under this Agreement when
caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind
storm, earthquake, pandemic, epidemic, disease, public enemy, civil commotion,
strikes, labor disputes, work stoppages or other difficulties within the
workforce, failure to provide power by the utility provider, intentional or
malicious acts of third persons or any other organized opposition, corruption,
depredation, accidents, explosions, fire, water sprinkler leakage, moths,
vermin, insect, seizure under legal process, embargo, prohibition of import or
export of goods, closure of public highways, railways, airways or shipping
lanes, governmental interference or regulations, or other contingencies,
similar or dissimilar to the foregoing, beyond the reasonable control of the
affected party. All Goods are stored, handled, and transported at Merchant’s
sole risk of loss, damage, or delay caused by any of the above.
15. Termination.
15.1 Termination Rights. You have the right to
terminate this Agreement at any time, provided you do not have a term contract,
a balance due or past due. You may commence account termination by sending a
termination request to support@Kayo3PL.com. Kayo3PL requires sixty (60) days
for account closures and final invoicing with the exception of Peak Season
(defined as dates between November 1st and January 5th).
Account closures during Peak Season will commence sixty (60) days from the
business day following January 5th. All services will be stopped
upon notice of termination. Kayo3PL may terminate this Agreement, at our
discretion and with or without cause (including your breach), at any time by
providing thirty (30) days prior notice to the administrative email address
associated with your Account. Kayo3PL may also terminate this Agreement upon
ten (10) days’ notice in the case of your nonpayment. Kayo3PL reserves the
right to immediately modify, suspend, or discontinue, temporarily or
permanently, the Services or an Account (or any part thereof) if you are in
breach of this Agreement or any term of a Kayo3PL Policy. All of Your Content
may be permanently deleted by Kayo3PL upon any termination of your Account. All
rights to payment and all other Sections which by their terms are intended to
survive shall survive termination or expiration of this Agreement.
15.2 Effects of Termination. Kayo3PL shall reasonably cooperate to transition
services to Merchant or Merchant’s designee. Prior to Merchant removing all the
remaining Merchant Goods following termination as stated herein, Merchant shall
sign Account Closure Release Form and pay (or pre-pay, as the case may be) Kayo3PL
(i) all current fees outstanding for Services and (ii) a good faith estimate of
fees that will become due for Services that will be incurred as a result of
removing all Goods from the facility. Should Merchant not fully and timely pay
any fees owed, Merchant’s account shall be deemed an Abandoned Account in
accordance with Section 9.3 above.
15.3 Removal of Goods. Once terms outlined in 15.2 have been met, Goods will be
released for removal. All removal and transportation costs are the
responsibility of the Client. Kayo3PL shall not be listed as the shipper,
exporter, or any other responsible party of the transportation of goods. It is
the Client’s responsibility to ensure that all documentation required for the
transport of goods is pre-arranged and provided to Kayo3PL within seven (7)
calendar days of notice of release of goods. Any goods returned to Kayo3PL’s
warehouse will be refused at the door.
16. DISCLAIMER OF WARRANTIES.
16.1 GENERAL DISCLAIMER. THE SERVICES,
INCLUDING THE KAYO3PL PLATFORM AND WMS, AND ALL SERVER AND NETWORK COMPONENTS,
ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND, AND KAYO3PL EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU
ACKNOWLEDGE THAT KAYO3PL DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES KAYO3PL MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES,
AND NO INFORMATION, ADVICE, OR SERVICES OBTAINED BY YOU FROM KAYO3PL SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
16.2 Services Disruption. The Services may be temporarily unavailable for
scheduled maintenance or unscheduled emergency maintenance or because of other
causes beyond our reasonable control. Kayo3PL shall use reasonable efforts to provide
advance notice of any Services disruption. Kayo3PL shall not be liable for any
such unavailability or disruption of Services.
16.3 Temperature and Humidity Levels. Kayo3PL does not represent, warrant or
guarantee that any Kayo3PL Facility will maintain a specific temperature range
or humidity level, nor shall Kayo3PL be liable for any fluctuations.
16.4 Delays or Non-Delivery by Third-Parties, including Carriers. Kayo3PL shall
not be liable or responsible for any delays in domestic or international
shipments of Goods or Orders, and Kayo3PL is, without limitation, not
responsible or liable for non-delivery or late delivery of Goods caused by
third-parties, including Carriers.
16.5 Fraudulent Orders. IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM
FRAUD AND TO PAY ALL FEES RELATED TO FRAUDULENT ORDERS EVEN IF THE GOODS ARE
NOT DELIVERED.
17. LIMITATION OF LIABILITY.
17.1 CARRIER POSSESSION OF GOODS. YOU
ACKNOWLEDGE AND AGREE THAT WHEN CARRIERS ARE IN POSSESSION OF YOUR GOODS,
CARRIERS, AND NOT KAYO3PL, ARE SOLELY RESPONSIBLE FOR ANY ACTUAL OR ALLEGED
HARMS SUSTAINED BY YOU OR YOUR GOODS AS DETERMINED UNDER APPLICABLE LAW.
17.2 INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES. UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE
OR OTHERWISE) SHALL KAYO3PL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES,
INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FOR AVOIDANCE OF
DOUBT, KAYO3PL IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR
LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP
SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT.
17.3 IMPLIED WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN THESE JURISDICTIONS, KAYO3PL’S LIABILITY WILL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
17.4 INSURANCE, DAMAGE, AND LOSS OF GOODS.
17.4.1 INSURANCE OF GOODS. YOU AGREE THAT YOUR GOODS ARE NOT INSURED AGAINST
LOSS OR DAMAGE BY KAYO3PL. FOR GREATER COVERAGE FOR YOUR GOODS, YOU MAY ADD
INSURANCE ON THE GOODS THAT YOU WISH TO BE COVERED, IN WHICH CASE YOU WILL BE
SUBJECT TO AN INCREASED CHARGE FOR SUCH INCREASED COVERAGE. NO SUCH COVERAGE
SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE, OR DESTRUCTION TO ALL OR
ANY PORTION OF THE GOODS HAS OCCURRED. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING
ANY INSURANCE COVERAGE FOR THE GOODS AT YOUR SOLE COST AND EXPENSE. KAYO3PL
DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT INSURANCE WILL COVER ALL OR A
PORTION OF YOUR GOODS LOSS (AS DEFINED BELOW). KAYO3PL SHALL NOT BE RESPONSIBLE
OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF
COVERAGE IS DENIED. THE DECISION TO PURCHASE INSURANCE AND ITS EXPENSE IS YOURS
ALONE. ALL SUCH INSURANCE IS PROVIDED BY THIRD-PARTY INSURANCE CARRIERS OR
BROKERS YOU MAY SELECT. KAYO3PL DOES NOT AND WILL NOT SELL INSURANCE AND SHALL
NOT BE DEEMED AN INSURANCE PROVIDER. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE
COVERAGE, IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF GOODS (“GOODS LOSS”)
FOR WHICH KAYO3PL IS OR MAY BE LEGALLY LIABLE, YOU AGREE THAT KAYO3PL’S
LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW.
17.4.2 MAXIMUM LIABILITY. IN THE EVENT THAT KAYO3PL IS FOUND LEGALLY LIABLE FOR
HARMS TO YOUR GOODS, YOU AGREE THAT KAYO3PL’S MAXIMUM LIABILITY FOR GOODS LOSS
(INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE LIMITED TO THE
ACTUAL PRODUCT VALUE OF THE LOST OR DAMAGED GOODS, WHICH SHALL BE MEASURED BY
THE ORIGINAL PURCHASE INVOICE FROM THE MANUFACTURER OR SUPPLIER, SUBJECT TO A
CAP OF 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE
STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”). FURTHERMORE, KAYO3PL’S
MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS NOTWITHSTANDING THE NATURE OR
GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY KAYO3PL,
SHALL NOT EXCEED $2,000. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS
UNDER THIS AGREEMENT AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN
DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
17.4.3 GOODS DAMAGED BY CARRIER. FOR GOODS THAT LOST OR DAMAGED BY A CARRIER, PLEASE
SEE SECTION 4.2.
17.4.4 SHRINK ALLOWANCE. HANDLING GOODS IN KAYO3PL FACILITIES COULD RESULT IN
LOSS OR DAMAGE OF GOODS. KAYO3PL MAINTAINS HIGH STANDARDS, HOWEVER OCCASIONALLY
KAYO3PL FACILITIES EXPERIENCE CONCEALED SHORTAGES, PRODUCT DAMAGES, MISLABELED,
MISS-PICKED GOODS AND/OR CROSS-SHIPMENTS. YOU AGREE THAT KAYO3PL WILL HAVE A
0.5% SHRINK ALLOWANCE BASED ON THE UNITS
OF YOUR ACCOUNT’S GOODS KNOWN TO BE IN KAYO3PL’S FACILITIES BASED ON THE
TOTAL GOODS VALUE AS DETERMINED IN KAYO3PL’S SOLE REASONABLE DISCRETION
MEASURED ON AN ANNUAL BASIS (“GOODS VALUE”) AND SUBJECT TO THE LIMITATIONS OF
LIABILITY IN THIS SECTION. EXPLAINABLE, OFFSETTING GOODS ADJUSTMENTS BASED ON
MISMARKED GOODS OR RECEIVING GOODS ERRORS WILL NOT BE DEEMED A GOODS SHRINKAGE
EVENT OR LOST GOODS.
17.5 EXCLUSIVE REMEDY. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION SHALL BE
YOUR SOLE AND EXCLUSIVE REMEDY AGAINST KAYO3PL FOR ANY CLAIM OR CAUSE OF ACTION
WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF GOODS, AND SHALL
APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO
THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).
18. Indemnification.
You shall defend, indemnify, and hold harmless
Kayo3PL from and against any claims, actions or demands, liabilities (including
court costs and attorneys’ fees), tax obligations, fines, and penalties,
including without limitation reasonable legal and accounting fees and expenses,
arising or resulting from: (a) your breach of this Agreement; (b) Your Content;
(c) your negligence, fault, omissions, or willful misconduct; (d) your fraud or
misrepresentation in connection with the Services; (e) any product liability,
infringement, or mislabeling claim arising from your Goods; or (f) your misuse
of the Services (“Claims”). Kayo3PL shall provide notice to you of any Claim. Kayo3PL
reserves the right to assume the exclusive defense and control of any
third-party Claims which are subject to indemnification under this Section. In
such case, you agree to cooperate with any reasonable requests assisting Kayo3PL’s
defense of such Claim. This indemnity shall include, without limitations, all
Claims in tort, contract, by statute or otherwise, including Claims for
personal injury (including death) and actual or tangible property damage.
19. Assignment.
You may not assign or transfer this Agreement
without the prior written consent of Kayo3PL. Kayo3PL may assign or transfer
this Agreement, in whole or in part, without restriction. This Agreement is
binding upon, and will inure to the benefit of, the successors and permitted
assigns of the parties.
20. Miscellaneous.
If any provision of this Agreement is found to
be unenforceable or invalid, that provision will be limited or eliminated to
the minimum extent necessary so that this Agreement will otherwise remain in
full force and effect, and enforceable. Both parties agree that this Agreement
is the complete and exclusive statement of the mutual understanding of the
parties and supersedes and cancels all previous written and oral agreements,
communications, representations, and other understandings relating to the
subject matter of this Agreement, and that all waivers and modifications must be
in a writing signed by both parties, except as otherwise provided herein.
Except as specifically set forth in an agreement signed by Kayo3PL, the terms
of this Agreement shall take precedence over any contrary or conflicting terms
in any other agreement. The failure of Kayo3PL to exercise or enforce any right
or provision of this Agreement shall not be a waiver of that right. You
acknowledge that this Agreement is a contract between you and Kayo3PL, even
though it is electronic and is not physically signed by you and Kayo3PL, and it
governs your use of the Services. No agency, partnership, joint venture, or
employment is created as a result of this Agreement and you do not have any
authority of any kind to bind Kayo3PL in any respect whatsoever. All notices under
this Agreement will be in writing and will be deemed to have been duly given
when received, if personally delivered; when receipt is electronically
confirmed, if transmitted by email; the day after it is sent, if sent for next
day delivery by recognized overnight delivery service; and upon receipt, if
sent by certified or registered mail, return receipt requested.
21. Governing Law, Venue, and Jurisdiction.
This Agreement and all Claims or disputes
between the parties shall be governed by the laws of the Province of Ontario
without regard to its conflicts of law provisions. All Claims, lawsuits, causes
of action, and disputes between the parties shall be brought exclusively in the
provincial or federal courts located in Hamilton, Ontario and you agree to
submit to the exclusive personal jurisdiction and venue of these courts.
After bad experiences with other 3PL providers, Kayo3PL has been stable, transparent and problem free!
I was in a huge problem, my 3PL closed and I had 20,000 units that I had to move in only one week. Kayo3PL handle it all for me without any disruption to my business! A+ service and performance!