User TermsLast Updated May 18, 2017
as of May 18, 2017
1. ABOUT THESE TERMS
1.1 Overview: TNX operates a web-based system (TNX Platform) which facilitates Cargo Owners entering into contracts (Transport Contracts) with Carriers for the transportation of Cargo (Services). The TNX Platform matches a Cargo Offer specified by a Cargo Owner with a corresponding Capacity Offer specified by a Carrier to generate an order for Services in a form generated by the TNX Platform (a Match).
1.3 TNX Transport Terms: The arrangement between a Cargo Owner and Carrier in respect of a Match is governed by the TNX Transport Terms. TNX has no rights or obligations under a Transport Contract, but does perform functions in respect of Transport Contracts on behalf of Cargo Owners and Carriers as set out in these User Terms (and has corresponding rights against and obligations to Users as a consequence).
1.4 Amendments: The User Documents may be amended from time to time by TNX. TNX will notify each User (in accordance with clause 10) of any such change no less than 30 days prior to the change taking effect. That notification will include a copy of or link to the relevant document or schedule, and the date from which the change is proposed to take effect. By continuing to use the TNX Platform from the date an amendment to a User Document takes effect, a User will be deemed to have accepted that amendment. Amendments to a User Document will not apply to a Transport Contract arising from a Match generated prior to the date that amendment takes effect.
2. TNX SERVICE
2.1 Account opening: Each User must complete the TNX Account Opening Procedure, and be approved by TNX as a User prior to accessing the TNX Platform.
2.2 Provision of TNX Platform: TNX will make the TNX Platform available to Authorised Persons on a non-exclusive and non-transferable basis. Each User will access and use the TNX Platform (including the TNX Software) in accordance with any operating instructions issued by TNX and available on the TNX Platform.
2.3 Availability: TNX agrees to use reasonable endeavours to ensure the TNX Platform is available without interruption. At times, TNX may need to withdraw or limit availability of the TNX Platform to allow for maintenance and development to take place. TNX will provide the User with reasonable prior notice in advance of such withdrawal or limitation of availability.
2.4 Third party hosting: The TNX Platform is hosted by a third party. There may be instances during which the User’s ability to use the TNX Platform is affected due to an issue affecting the third party host including a Force Majeure Event. TNX will use reasonable endeavours to minimise any interruption to the User’s access to the TNX Platform, but the User acknowledges that such instances may be beyond TNX’s control and agrees that TNX will not be liable for such interruptions.
2.5 Changes and upgrades: TNX reserves the right to make changes to the TNX Platform at its complete discretion at any time including upgrading, replacing and removing features, functionality, security features, log-in procedures and/or the user interface.
3. PRIVACY AND SECURITY
3.2 Security: TNX will use all reasonable efforts to keep information secure, through technical and organisational measures. However, it is the User’s responsibility to ensure that those security measures are appropriate in the context of the User’s User Data. In the event of any unauthorised access or use of the User’s User Data or other security breach, TNX’s liability will be limited in accordance with clause 7 of these User Terms.
3.3 Offshore storage: Each User consents to its User Data (which may include personal information) being stored using Amazon Web Services whose data centres are located in the United States.
4. USER OBLIGATIONS
4.1 Use of Service: The User will:
4.2 Authorised Persons
4.3 Access conditions: Except where expressly permitted elsewhere in these User Terms, the User must ensure that it does not, and Authorised Persons do not:
4.4 Carrier’s information: Each Carrier must ensure that its Profile and any Capacity Offer posted on the TNX Platform are accurate and up to date. Each Carrier acknowledges that TNX and Cargo Owners are entitled to rely on the information provided on the Carrier’s Profile when matching a Carrier’s Capacity Offer to a Cargo Offer.
4.5 Cargo Owner’s information: Each Cargo Owner must ensure that its Profile and any Cargo Offers posted on the TNX Platform are accurate and up to date. The Cargo Owner acknowledges that TNX and each Carrier are entitled to rely on the information provided on the Cargo Owner’s Profile when matching that Cargo Owner’s Cargo Offer to a Capacity Offer. A Cargo Offer cannot be withdrawn once the TNX Platform has matched it with a Capacity Offer.
5. TNX FEE, PAYMENT AND GST
5.1 Carrier invoice: Promptly following completion of a Transport Contract (see section 6 of the TNX Transport Terms):
5.2 Assignment of invoice to TNX:
5.3 Carrier authorisations: For so long as the Carrier continues to be an authorised User, to use the TNX Platform or to be a party to a Transport Contract, the Carrier authorises TNX to:
5.4 Carrier Commission:
5.5 Cargo Owner Commission:
5.6 B2B election: As a condition of becoming a User, each Carrier will make an election under section 20F of the GST Act (the GST business to business “B2B” regime) so that the assignment by the Carrier to TNX under clause 5.2(a) of the right to receive the Total Fee is treated as a zero rated supply of financial services for GST purposes.
5.7 GST: If any supply made by TNX to a User is a taxable supply in respect of which TNX is required to account for GST then that User will pay to TNX an amount additional to the commission or fee that is equal to the amount of GST payable on that taxable supply at the same time and in the same manner as the commission or fee is payable.
5.8 Invoice requirements: Each invoice issued by TNX in its personal capacity or on behalf of a Carrier in respect of a Transport Contract will be in the form of a tax invoice for the purposes of the GST Act.
5.9 Late payment: If the User fails to pay an invoice issued by TNX by its due date:
5.10: All words and phrases in this clause 5 shall have the same meaning as in the GST Act unless otherwise defined.
6. INTELLECTUAL PROPERTY
6.1 TNX Platform IP: All Intellectual Property Rights comprised in or underlying the TNX Platform (including the software used to power it, the web client and/or API through which it is accessed, all documentation relating to the TNX Platform, and the branding, layout, look and feel and any trade marks associated with it) remain owned by TNX (or its licensors) and by accessing the TNX Platform each User agrees that they will not dispute such ownership.
6.2 Feedback: TNX welcomes User feedback and ideas on how to improve the TNX Platform. If a User submits feedback or suggestions for improvement, TNX will be free to use those ideas and the User will not have rights to any intellectual property that may be generated as a result.
6.3 User Data rights: The User grants TNX a worldwide, non-exclusive, irrevocable, royalty-free transferable licence to use, store, copy, modify, make available and communicate the User Data for the purpose of providing the TNX Platform to the User and facilitating the User’s access and use of the TNX Platform, including entering into Transport Contracts with other Users. Each User indemnifies TNX for all losses, liabilities, costs and expenses (including but not limited to legal costs) suffered or incurred by TNX due to a claim brought against TNX by a third party alleging that the User’s User Data is defamatory or unlawful or infringes that third party’s rights or any applicable laws.
6.4 Data aggregation and benchmarking: Each User agrees that:
7. TNX LIABILITY
7.1 Total liability cap: TNX’s maximum aggregate liability to any User for any losses, costs or damages incurred by that User in connection with the use of the TNX Platform by that User during a 6 month period, whether arising in contract, tort (including negligence) or otherwise, will not exceed an amount equal to five times the amount of the Fees payable by that User to TNX during that same 6 month period.
7.2 Certain losses excluded: TNX will not be liable to a User for:
7.3 Events outside of TNX control: TNX will not be liable for any losses, costs or damages to a User due to:
7.4 Mitigation: TNX will use reasonable endeavours to keep Users informed about a network outage or other event that affects the use of and access to the TNX Platform and will take reasonable steps to mitigate the effect of that event and to resume availability of the TNX Platform as soon as reasonably practicable.
7.5 International Air Carriage: To the extent that the Montreal Convention applies to a Transport Contract that includes an Airport to Airport Service, each party acknowledges that TNX is not a carrier, consignor or consignee as those terms apply in the Montreal Convention.
8. CANCELLATION OR SUSPENSION
8.1 Cancellation or suspension:
8.2 Consequences of cancellation: The cancellation of a User’s account (by the User or TNX) or the temporary suspension of a User’s access to the TNX Platform:
9. DISPUTE RESOLUTION
9.1 Dispute notice: Neither TNX or a User will file legal proceedings in respect of a dispute between them regarding any matter concerning that User’s access to or use of the TNX Platform (other than the payment of Fees) unless the party intending to file proceedings has used all reasonable endeavours to complete the steps in clauses 9.2 and 9.3. This clause will not prevent any person from applying to a court for urgent interlocutory relief.
9.2 Negotiation: Within 10 Business Days of either party giving written notice that a dispute exists, senior managers of the parties shall meet to endeavour to resolve the dispute.
9.3 Mediation: If the dispute is not resolved within 20 Business Days of receipt of the notice of dispute, either party may by notice to the other party refer the dispute to mediation. The mediation will be in Auckland. If the parties do not agree on a mediator, or the mediator’s fees, within five Business Days of receipt of the notice of mediation, the mediator will be appointed, or the fees set, by the Chair of Resolution Institute (email: email@example.com) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.
10.1 Notices to the User: TNX may give notice to the User under these User Terms by:
10.2 Notices to TNX: The User may give notice to TNX under these User Terms by email to firstname.lastname@example.org.
11.1 Further assurances: Each party shall, at its own expense, promptly sign and deliver any documents, and do all things, which are reasonably required to give full effect to the provisions of these User Terms.
11.2 Relationship: The parties are independent contractors, and these User Terms do not create any partnership, agency or employment relationship between them.
11.3 Rights at law: The rights and remedies provided in these User Terms are cumulative and not exclusive of any rights or remedies provided by any User Document or otherwise at law.
11.4 Severance: If any provision of these User Terms or any other User Document is illegal, invalid or unenforceable, that provision shall be read down to the extent necessary to make it legal, valid and enforceable.
11.5 Governing law and jurisdiction: The relationship between TNX and a User is governed by New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.
11.6 Interpretation: In these User Terms, unless the context requires otherwise:
Please refer to the Glossary for a definition of all capitalized terms in this document.