Terms and Conditions 

 

1. Definitions

 

For the purpose of these general terms and conditions, the capitalized terms as set out below shall have the following meaning:

 

Arviem means the Swiss company Arviem AG, Haldenstrasse 5, 6340 Baar, Switzerland;

 

Cargo Monitoring Service means the monitoring of the whereabouts, the condition and the environment of shipments in real-time and analyze the collected data (“ACMS”);

 

Cargo Tracking Service means a tracking-without-device-service that gives a holistic view on the whereabouts of shipments including some limited analysis of the data (“ACTS”);

 

Custody means a Device that is in Custody of a Party during the Device Cycle Time, when it is in its own custody or in the custody of one of his agents (such as the freight forwarder or a third-party logistics company);

 

Customer means the customer who has entered into a Customer Agreement with Arviem;

 

Customer Agreement shall have the meaning set forth below in Section 2.2;

 

Devices a device can be any type of IoT sensing component, monitoring the whereabouts and/or conditions of cargo, which is added to the shipment and/or the container containing the cargo to provide the Services;

 

Device Cycle Time means average duration in days between the arrival of the Device at the origin location of the Customer and the retrieval of the Device at the destination location;

 

Deployment Plan means measurable milestones over time, namely the to be implemented routes and the associated monitored shipments per route. Other milestones could also be marketing activities, certifications, workshops etc.;

 

Idle Time Fee means the fee agreed with the Customer in case the actual Device Cycle Time is higher than the agreed Device Cycle Time;

 

Lease Based Pricing means the price structure based on a rate per device per month, applicable for an agreed and committed volume of Devices

 

Parties means Arviem and the Customer;

 

Price means all rates and charges for the Services provided by Arviem as per the Customer Agreement

 

Platform means the dashboard developed by Arviem for monitoring and tracking shipments and data analytics;

 

Rates and Charges mean the consideration to be paid by the Customer for the provision of Services;

 

Risk Management Service means the identification of the probability of cargo or logistics operations being exposed to risk scenarios, the initiation of respective notifications and support to the Customer to prevent and mitigate potential losses of quality, quantity or time (“ARMS”);

 

Services mean the Services Arviem is providing as part of its Service Suite, namely Arviem Cargo Monitoring Services (ACMS), Arviem Cargo Tracking Services (ACTS) and Arviem Risk Management Services (ARMS), as well as other related services agreed upon between the Parties;

 

Shipment Based Pricing means the price structure based on a rate per started monitored shipment, applicable for an agreed and committed volume of Shipments.

 

Terms mean these general terms and conditions for Arviem’s Services, as updated and amended from time to time;

 

User means each user authorised by the Customer to access the Platform on its behalf.

 

2. General

 

2.1. These Terms govern the contractual relationship between Arviem and Customer with regard to the provision of the Services.

 

2.2. Customer agrees to the application of these Terms by accepting Arviem’s proposal, by signing an agreement with Arviem or by subscribing Services directly through Arviem’s platform, which results in the Customer Agreement. Any legal conditions which the Customer may wish to apply in addition are hereby rejected and shall therefore not apply.

 

3. Services

 

3.1. The Scope of Services is determined in the Customer Agreement.

 

3.2. Arviem Cargo Monitoring Services (ACMS)

 

3.2.1. Customer acknowledges and agrees that the provision of Cargo Monitoring Services is subject to the following, amongst others:

 

a) correct use of the Devices (mounting, handling, storage) during the entire Custody by Customer, as per the instructions provided by Arviem,  [accessible HERE ]as updated from time to time.

 

b) availability of networks compatible with the Devices in use, in accordance to the list of countries available, [DRY MARITIME service accessible HERE], as updated from time to time.

 

c) country-specific rules and regulations regarding the Devices (customs, taxes, embargo restrictions), as to be verified in advance by Customer.

 

3.2.2. Arviem endeavors to provide accurate ‘live’ data via the Platform, or API during the journey and to provide an uninterrupted service on the Platform or API. However, there may be instances where data transmission, accuracy, or access is restricted or impaired due to unforeseen circumstances. Therefore, no warranty may be provided with regard to the Platform, the API or the data.

 

3.3.  Arviem Cargo Tracking Services (ACTS)

 

3.3.1. Customer acknowledges and agrees that the provision of Cargo Tracking Services is subject to the following, amongst others:

 

a) providing the information and data as defined in the customer agreement

 

b) availability of data provided by carriers

 

3.3.2. Arviem endeavors to provide accurate ‘live’ data via the Platform, or API during the journey and to provide an uninterrupted service on the Platform or API. However, there may be instances where data transmission, accuracy, or access is restricted or impaired due to unforeseen circumstances. Therefore, no warranty may be provided with regard to the Platform, the API or the data

 

4. Obligations of Arviem

 

4.1. Unless otherwise agreed upon, Arviem shall provide the Services on a best effort basis in accordance with the professional standards as customary within the relevant industry.

 

4.2. Following the implementation of a new route, Arviem will be afforded a trial period of up to 10 shipments to make necessary adjustments to assure the quality of the data.

 

5. Obligations of Customer

 

5.1. In order to enable Arviem to perform its obligations hereunder, the Customer shall:

 

a) ensure that the Customer’s account on the Platform may only be accessed by authorized Users;

 

b) provide the resources to support the engagement and respond to Arviem queries in a timely manner;

 

c) provide specific requirements and inputs to establish monitoring requirements for all shipments;

 

d) encourage that Users use the system, action the alerts, and review the data analytics during the entire term of the agreement;

 

5.2. In addition, if the Services include Cargo Monitoring Services, Customer shall:

 

a) provide Arviem with the necessary information in order to provide the Services; such information may include route, carrier, performance, POC information (such as name, email, phone number), and any other relevant information that may be requested by Arviem;

 

b) execute shipment according to the Deployment Plan and advise Arviem of any shipment delays;

 

c) handle Devices in accordance to Arviem’s device manuals and instructional videos (available HERE), as updated from time to time;

 

d) grant timely access to / hand-over Devices for pick-up.

 

e) comply with country-specific rules and regulations with regard to the Devices and manage all customs formalities including the noting of Devices on the bill of lading (as communicated by Arviem to Customer in advance);

 

f) inform relevant parties such as his receiving sites, customers, suppliers, logistics service providers about the use of the Arviem Service and Devices;

 

g) undertakes to provide complete and accurate information related to customs, entries, export declarations, applications, documentation, and/or export data to the relevant local customs service, other government agencies, and/or third parties, as requested by Arviem;

 

h) support Arviem in a reasonable and professional manner in resolving potential issues related to customs.

 

5.3. Further or divergent obligations may be agreed upon in the Customer Agreement.

 

6. Rates and Charges

 

6.1. Upon conclusion of the Customer Agreement or signed proposal, Customer undertakes to pay the agreed Rates and Charges.

 

6.2. Unless otherwise agreed, shipment based contracts will be invoiced on the last day of the corresponding month, and all other contracts will be invoiced on the last day of the preceding month. The payment terms shall be 30 days of the invoice date.  The Customer will be charged a penalty interest in case of late payment.  The applicate interest for late payment is set at an annual rate of 8% above the Swiss National Bank Policy Rate.  The daily rate is calculated by dividing the combined aforementioned annual rate by 365 days.

 

6.3. All Rates and Charges payable are net of all applicable taxes (such as VAT), withholding taxes, or any bank or transaction or currency conversion fees. In the event such taxes and duties are due, Arviem will add them to the invoices accordingly, if and when due.

 

6.4. Unless otherwise agreed, out-of-pocket expenses (e.g. travel costs, etc.) are not included in the Services and will be charged separately, provided they have been incurred and/or committed with Customer’s prior agreement.

 

7. Price Adjustments and Additional Charges

 

7.1. It is agreed between the parties that Arviem’s rates and charges for the Services are based on agreed parameters, such as but not limited to volumes, trade lanes (incl. origins and destination), transport mode (rail, road, sea, air), etc., as defined in the Deployment Plan. Therefore, Customer acknowledges that the rates and charges are subject to changes in case the Services are not used in accordance with the Deployment Plan.

 

7.2. Arviem shall ship Devices to the origin location of the customer based on the Deployment Plan. Arviem has the right to ship more Devices to the origin location in a manner to optimize the Device logistics.

 

7.3. Arviem shall retrieve Devices from the destination locations as soon as the Devices are made available by the Customer and are ready for retrieval.  Arviem has the right to wait to retrieve the Devices from the destination location in a manner to optimize the Device logistics.

 

7.4.  For Shipment Based Pricing, if the average actual Average Device Cycle Time is higher than the agreed Average Device Cycle Time, Arviem has the right to charge the Customer with the amount equal to (Actual Average Device Cycle Time – Contract Average Device Cycle Time) x Actual Shipments during the period x Idle Time Fee.

 

7.5. Annually, at the beginning of every calendar year, the Price will be adjusted to reflect increases in the Producer Price Index for Manufacturing (PPI-M), OECD total market published by the OECD (https://data.oecd.org/price/producer-price-indices-ppi.htm). The adjustment shall be effective on the 1st of March.  Annually, the Price shall be adjusted by the percent increase in the PPI-M during each prior twelve-month period from December to December (for purposes of such calculation, the fees shall be the fees set forth on a revised pricing table provided by Arviem to the Customer on an annual basis). If publication of the PPI-M by the OECD ceases or otherwise becomes unavailable or is altered in such a way as to be unusable, the parties shall agree on the use of an appropriate substitute index.

 

8. Limitation of Liability

 

8.1. The Parties’ liability or responsibility under or in conjunction with the Customer Agreement under any title shall be limited to direct damages only, and is further limited to the amount actually paid by the Customer to Arviem during the twelve (12) months immediately preceding the event leading to the (alleged) damage.

 

8.2. Neither Arviem nor Customer shall be liable for any type of special, incidental, punitive, indirect, and consequential damages, including, but not limited to loss of profits or revenue, loss of income, loss of use, loss of interest, loss of data or damage to the reputation.

 

8.3. Arviem excludes any liability for damages that could arise on the basis of a lack of availability of the Services or accuracy of data from the Devices, the Platform and/or the API.

 

8.4. Arviem then excludes any liability for damages whose cause is primarily or exclusively attributable to Customer, such as non-compliance with the use instructions regarding the Devices and/or the Platform, damages due to incompatibility of the Customer’s software with the system operated by Arviem, interruption of data transmission, deactivation of necessary cookies or damages resulting from a lack of access security on the part of the Customer.

 

8.5. The limitations and exclusions of this clause shall not apply (a) in case of willful misconduct or gross negligence, (b) in the event of death or bodily injury, (c) if and to the extent mandatory applicable law provides otherwise, or (d) with respect to a Party’s obligation to indemnify the other Party pursuant to the indemnification clause hereafter.

 

8.6. Customer is responsible for Devices that are in its Custody. Customer takes care of the Devices during the shipment and follows the instructions given by Arviem. In case of damage or loss of a Device (including Devices that cannot be reclaimed), the liability of Customer is limited to the depreciated costs of such Device unless both parties have explicitly agreed on a limitation of liability for Device loss or damage.

 

9. Indemnification

 

9.1. If a third party disputes the ownership and/or rights to the Platform and/or the Devices, Arviem undertakes to indemnify the Customer and its representatives, employees and auxiliary persons from all claims arising as a result of the use of the Services by the Customer, to defend them in such claims and to pay damages to the Customer (including for reasonable costs of legal defense).

 

9.2. The Customer undertakes to indemnify Arviem and its representatives, employees, and auxiliary persons from all claims arising as a result of the use of the Services, the Platform and/or the Devices by the Customer, to defend them in such claims and to pay damages (which may include fines) to Arviem (including for reasonable costs of legal defense). This applies, in particular (but not exclusively), to the following cases: (a) the breach or violation of a provision of this Customer Agreement, in particular, the misuse of the Service, the Platform or the Devices; (b) Customer’s failure to disclose information or any incorrect or false statement by Customer upon which Arviem reasonably relied; (c) the breach or violation of the applicable law and/or the breach of rights of third parties.

 

9.3. The Party aggrieved shall immediately inform the other Party if a third party asserts such claims. The Parties shall consult each other with regard to the defense against claims. The Parties shall support each other reasonably in the defense and shall inform each other about the course of the proceedings regularly and without delay.

 

10. Intellectual Property and Data

 

10.1. The Customer acknowledges and agrees that all the intellectual property rights related to the Arviem Platform and to the Arviem Device are the property of Arviem and/or its suppliers.

 

10.2. The Customer undertakes to limit its use of the Arviem Platform and the Arviem Devices for the purpose set forth in the Customer Agreement.

 

10.3. The data generated in the Platform and by the Devices shall be the property of Arviem. Arviem grants the Customer the right to use such data as is made available in the Platform. Arviem undertakes not to license or transfer any data generated for the Customer, unless such data was anonymized.

 

10.4. For all information on the handling of the Customer’s personal data, Arviem refers to its privacy policy.

 

11. Data Protection

 

11.1. Arviem shall process personal data only for the purposes of performing the Services in accordance with the Customer Agreement, and as required in the applicable data protection laws. In particular, Arviem shall:

 

a) process personal data only on documented instructions from Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or EU member state law to which Arviem is subject; in such a case, Arviem shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

 

b) ensure that persons authorized to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

 

c) take all measures required pursuant to security of processing as per the applicable data protection laws;

 

d) assist the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in the applicable data protection laws;

 

e) promptly notify the Customer about any third party requests for personal data including, without limitation: a) any legally binding request for disclosure of the personal data by a law enforcement or other government authority unless any such notification to the Customer is prohibited by law, and b) any request received directly from a data subject, and prior to responding to any such request;

 

f) assist the Customer in ensuring compliance with the data protection law obligations mainly related to security of processing, notification of data breaches and data protection impact assessments;

 

g) transfer personal data outside of Switzerland or the EU only if Arviem has appropriate safeguards in place;

 

h) delete all the personal data of Customer after the end of the provision of the services relating to processing, except for regular backup copies;

 

i) make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this Section 11 and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer;

 

j) not engage a sub-contractor to process personal data without prior specific or general written authorization of the Customer. In the case of general written authorization, Arviem shall inform the Customer of any intended changes concerning the addition or replacement of sub-contractors, thereby giving the Customer the opportunity to object to such changes;

 

k) communicate to the Customer the contact information of its data protection officer or any other dedicated person to data protection in its organization.

 

12.Confidentiality

 

12.1. The Parties undertake to keep the contents, all the documents and relative information related to the Customer Agreement strictly confidential.

 

12.2. Arviem undertakes to keep confidential all confidential data generated under the Customer Agreement.

 

12.3. This obligation of confidentiality survives the termination of this agreement.

 

13. References

 

13.1. Unless expressly mentioned in the Customer Agreement or communicated to Arviem in writing, the Customer authorizes Arviem to use its name, trademark and logo for advertising references in any form and on any medium for the duration of the Services and for a period of two years thereafter.

 

14. Duration and Termination

 

14.1. Unless otherwise agreed upon between the Parties, the Customer Agreement enters into force with its signature and can be terminated upon six months’ prior written notice, for the first time 24 months after its entry into force. Thereafter, the Customer Agreement shall continue to be in effect for successive periods of one year unless terminated by any Party upon six months’ prior written notice.

 

14.2. Either party may terminate this agreement by prior written notice to the other party upon 30 days’ notice:

 

a) If the other party is in substantial breach of any of his obligations hereunder and has failed to remedy such breach within sixty (60) days of receipt of written notice specifying such breach and requiring its remedy. For the purpose of this agreement a “substantial breach” is a breach in a party’s obligations under the Customer Agreement, which is significant and substantial, whether due to the nature of the breach itself or its repeated and habitual occurrence which justifies the termination of the Customer Agreement.

 

b)  In case the other party is declared insolvent, bankrupt or is liquidated or in case the other party has a receiver, administrative receiver, bankruptcy administrator or any other remedial step imposed or appointed over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangements with its creditors or any other form of insolvency.

 

14.3. Upon termination, scheduled shipments in accordance to the Deployment Plan that start on or prior to the termination date will be fulfilled by Arviem. The Customer Contract shall still apply to such shipments until they are completed. Arviem shall have the right to request payment for such shipments prior to the termination date.

 

14.4. Upon termination, all Devices held by Customer shall be unconditionally made available and returned to Arviem. Devices which are required for the completion of shipments in accordance to Section 3 shall be made available and returned to Arviem upon such completion.

 

14.5. Termination shall be without prejudice to any rights of either party accrued prior to such termination.

 

15. Amendments to these Terms

 

15.1. Arviem reserves the right to periodically review these Terms and, if necessary, to amend these Terms at any time and to adapt its services to the new state of the art. Arviem will inform the Customer of these changes in a suitable form (e.g. in writing, by e-mail and/or online when the User logs into the Platform). Arviem shall inform the Customer of the date on which the agreement with the amended Terms continues to apply.

 

15.2. If amendments to the Terms substantially worsen the legal relationship between the Customer and Arviem, the Customer has the right to terminate the Customer Agreement at the point in time at which the amendment to the Terms becomes effective according to Arviem’s notification, provided that the Customer declares this in writing to Arviem within 30 days of receipt of the amendment notification.

 

15.3. Otherwise, the Customer Agreement can only be amended in writing with the mutual consent of both Parties.

 

16. Transfer of Rights

 

16.1. The Customer may only transfer the rights and obligations arising from the Customer Agreement to third parties with the prior written consent of Arviem.

 

17. Notices

 

17.1. Except as otherwise provided herein, any notice, request, approval, consent or other document requiring or permitted to be given under the Customer Agreement shall be in writing transmitted by postal mail or e-mail, subsequently confirmed by letter addressed to the other Party’s address.

 

18. Miscellaneous

 

18.1. In the case where any of the provisions of these Terms would be considered or held, at any time whatsoever, by an authority or a court having jurisdiction, as being inapplicable, illegal or unenforceable, the validity, the legality and enforceability of the other provisions of these Terms shall not be affected; the parties, however, agree that in such case, they shall negotiate in good faith in order to agree on terms that shall be applicable and that shall supersede the provision which would be null, illegal or unenforceable; these terms will have to be as consistent as possible with the intent of the parties as initially expressed.

 

18.2. These Terms and the additional documents constitute the entire understanding between the Parties with respect to the subject matter of the Customer Agreement and supersedes all prior agreements, negotiations and discussions between the Parties relating to it.

 

18.3. The parties declare that each has the right, power and authority and has taken all necessary action to execute and deliver and to exercise their rights and perform their obligations under these Terms.

 

18.4. The failure of either party to exercise or enforce any right under these Terms shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

19. Applicable Law and Jurisdiction

 

19.1. These Terms shall exclusively be governed by Swiss substantive law, excluding the conflict of law provisions of the Swiss Federal Act on International Private Law and the Lugano Convention and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980).

 

19.2. The Parties hereto consent to the exclusive jurisdiction of the courts of Zug, Canton of Zug, Switzerland, with respect to any dispute, controversy or claim arising out of or in relation to these Terms and all current and future Annexes, including the validity, invalidity, breach or termination thereof.