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 firstname.lastname@example.org.
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.
4.1 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 email@example.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.
10.1 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.
15.1 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.