TNX User Terms

as of May 18, 2017

Introduction

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).

1.2 Effect of these terms: These User Terms, together with the TNX Fee Schedule, the TNX Privacy Policy the TNX Transport Terms and the TNX Account Opening Procedure (each a User Document) will apply to any person who opens a user account with TNX or who otherwise accesses or uses the TNX Platform, whether as a Cargo Owner or Carrier or in any other capacity (a User). These User Terms will apply from the date the User first uses the TNX Platform until the User’s account is cancelled or expires.

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

3.1 TNX Privacy Policy: The TNX Privacy Policy specifies how TNX will handle personal information of Users. By using the TNX Platform and accepting these User Terms, a User is taken to have accepted the adequacy of the TNX Privacy Policy.

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:

(a) pay TNX's Fees in accordance with these User Terms (see clause 5);

(b) maintain sufficient network connections and telecommunications links from its systems to the TNX Platform;

(c) keep all usernames and passwords used to access the Service confidential;

(d) notify TNX immediately of any unauthorised use of a log-in or other security breach; and

(e) use the TNX Platform solely for its own lawful business purposes and not for any other purpose.

4.2 Authorised Persons

(a) The User will provide TNX with names, titles and email addresses of each person who it wishes to have access to the TNX Platform (Authorised Person).

(b) Only Authorised Persons may access and use the TNX Platform

(c) TNX will allocate each Authorised Person with log-in details to enable them to access and use the TNX Platform. Those log-in details are personal to the Authorised Person to whom they are allocated, and the User will ensure that each Authorised Person keeps those log-in details secure and do not allow any other person to use them.

(d) The User shall be responsible for all acts done using an Authorised Person's log-in details and will ensure that each of its Authorised Persons complies with these User Terms.

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:

(a) attempt to undermine the security of any part of the TNX Platform or use it in a manner which may impair its functionality;

(b) except to the extent expressly permitted under these terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, make available or distribute all or any component of the TNX Platform or the software underlying the TNX Platform or any Transport Data;

(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any software, format or system comprised in or underlying the TNX Platform;

(d) access all or any part of the TNX Platform in order to build a product or service which competes with TNX's products or services;

(e) use the TNX Platform in any way that would constitute a breach of a third party's intellectual property rights or rights to privacy; or

(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, the TNX Platform or Transport Data.

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.

4.6 Non-solicitation:

(a) No User (first User) will enter into a contract with another User (second User) to receive or provide transport services that correspond with Capacity Offers, or to satisfy Cargo Offers, that are offered on the TNX Platform by the second User other than via the TNX Platform; and

(b) A person who was a User will not, for at least two months after ceasing to be a User, procure transport services from or perform transport services for any current User other than transport services which are not the same as or similar to transport services in respect of which that current User has current Cargo Offers or Capacity Offers on their User Profile.

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):

(a) TNX will issue an invoice for the Total Fee on behalf of the Carrier (Total Fee Invoice);

(b) TNX will send the Total Fee Invoice to the Cargo Owner; and

(c) The Cargo Owner will pay the amount of the Total Fee Invoice to TNX at the time and in the manner specified in the Payment Terms selected by the Cargo Owner in the account opening process or if no Payment Terms have been selected, within 30 days of the date of the Total Fee Invoice.

5.2 Assignment of invoice to TNX:

(a) Immediately after the Total Fee Invoice is issued by TNX, the Carrier will assign to TNX its right to be paid the Total Fee.

(b) In consideration for the assignment of the Carrier's right to the Total Fee under clause 5.2(a), TNX agrees to pay the Carrier an amount equal to the Total Fee at the time and in the manner specified in the Payment Terms selected by the Carrier in the account opening process or if no Payment Terms have been selected, within 30 days of the date of the Total Fee Invoice. The Carrier acknowledges and agrees that when making any payment to the Carrier under this clause 5.2(b) TNX shall be entitled to set off any Carrier Commission payable by the Carrier to TNX under clause 5.4.

(c) The Carrier acknowledges that because it has assigned its payment rights to TNX under clause 5.2(b) it will have no rights to pursue payment against the Cargo Owner for the Services to which that invoice relates under the corresponding Transport Contract.

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:

(a) match the Carrier to a Cargo Owner's Cargo Offers and determine the final, legally binding terms of the Match using the TNX Platform;

(b) issue the Total Fee Invoice in accordance with clause 5.1(a); and

(c) pay the Carrier Commission in accordance with clause 5.2(b).

5.4 Carrier Commission:

(a) The Carrier will pay a commission to TNX in respect of each Transport Contract that it is a party to (Carrier Commission).

(b) The Carrier Commission for each Transport Contract will be a percentage of the Total Fee calculated in accordance with the TNX Fee Schedule published on the TNX Platform on the date the relevant Match is created.

(c) TNX will issue a tax invoice for the Carrier Commission on (or before) the date on which it is required to make the payment to a Carrier under clause 5.2.

5.5 Cargo Owner Commission:

(a) The Cargo Owner will pay a commission to TNX in respect of each Transport Contract that it is a party to (Cargo Owner Commission).

(b) The Cargo Owner Commission for each Transport Contract will be a fee calculated in accordance with the TNX Fee Schedule published on the TNX Platform on the date the relevant Match is created.

(c) TNX will issue a GST invoice for the Cargo Owner Commission promptly following completion of the corresponding Transport Contract.

(d) Cargo Owners will pay the Cargo Owner Commission to TNX at the same time and in the same manner as payment of the Total Fee Invoice.

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:

(a) Interest will accrue on any overdue amount on a daily basis at a rate of 2% per month from the due date until the date of actual payment;

(b) Interest on overdue amounts will accrue on a daily basis and be capitalised monthly;

(c) TNX may set off the overdue amount against any amount payable by TNX to the User;

(d) TNX may immediately suspend the User's access to the TNX Platform until payment is made in full; and

(e) TNX reserves the right to take any other action available to TNX at law.

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:

(a) TNX may use (in perpetuity) its User Data and data relating to its usage of the TNX Platform (in each case in an anonymised and aggregated form) for the purposes of generating and compiling transport information including travel times, cargo volumes, costs and other relevant statistics (Transport Data) which may be made available to TNX's customers for benchmarking and analytical purposes; and

(b) all intellectual property rights in Transport Data derived from User Data will be owned by TNX.

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:

(a) any indirect, consequential or special loss or damage, any loss of business opportunity, or damage to goodwill, suffered or incurred by that User; or

(b) any loss to that User caused by a breach of a Transport Contract by another User.

7.3 Events outside of TNX control: TNX will not be liable for any losses, costs or damages to a User due to:

(a) any event or circumstance beyond the reasonable control of TNX such as an act of God; or

(b) a network or power outage.

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:

(a) TNX may cancel a User's account and suspend a User's access to the TNX Platform at any time.

(b) A User may cease to use the TNX Platform at any time.

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:

(a) will not affect TNX's or any other User's accrued rights and remedies under these User Terms or a Transport Contract, including the payment of Fees or a Total Fee; and

(b) will not affect any licence to use that User's User Data in accordance with clause 6.3.

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: infonz@resolution.institute) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.

10. NOTICES

10.1 Notices to the User: TNX may give notice to the User under these User Terms by:

(a) posting to the User's Profile or the TNX Platform; or

(b) emailing to the User at the email address nominated by the User during the account creation process.

10.2 Notices to TNX: The User may give notice to TNX under these User Terms by email to members@tnx.co.nz.

11. GENERAL

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:

(a) derivations of any defined word or term shall have a corresponding meaning;

(b) a gender includes each other gender;

(c) the headings to clauses are inserted for convenience only and do not affect interpretation;

(d) the word "including" and other similar words do not imply any limitation;

(e) a person includes any individual, company, corporation, firm, club, partnership, joint venture, association of persons (incorporated or not), trust or governmental agency;

(f) all amounts are denominated in New Zealand dollars unless stated otherwise;

(g) the plural includes the singular and vice versa; and

(h) a reference to a statute includes all regulations and other subordinate legislation made under that statute. A reference to a statute, regulation or other subordinate legislation, or to a provision of any statute, regulation or other subordinate legislation, includes that statute, regulation or other subordinate legislation or provision as amended, re-enacted or replaced from time to time.

Please refer to the Glossary for a definition of all capitalized terms in this document.