Terms of Use
When ordering OpenAir ’s services, you as the Sender, are agreeing on your behalf and on behalf of the Recipient and anyone else with an interest in the Cargo (each a “Party”, and collectively the “Parties”) that these Terms and Conditions shall apply to the Cargo.
1. DEFINITIONS
a). “Delivery Service” means the delivery or logistics services provided by OpenAir to the Sender to deliver the cargo.
b). “ePOD” means electronic proof of delivery.
c). “Local Time” means the local time in the country where the Delivery Service is provided.
d). “OpenAir ” means the member of the OpenAir Logistics network of companies that is providing the Delivery Service to you.
e). “OpenAir Account” means the account created by the Sender on the OpenAir Sender applications to create and manage delivery orders.
f). “OpenAir Sender Applications” means the OpenAir web and mobile application to create and manage delivery orders in connection with the Delivery Service.
g). “OpenAir Software '' means the OpenAir digital app-based platfom for the purpose of the Delivery Service.
h). “Cargo” means all kinds of goods that you, as the Sender, wish to move to your locations agreed in the logistics contract (s) with OpenAir
i). “Recipient” means the person (s) assigned by you to receive the goods.
j). “Sender” means you, the person using this Delivery Service.
k). “Working Day” means a day (other than a Sunday or gazetted public holiday) in the country in which the Delivery Service takes place.
2. THE DELIVERY SERVICE
a). Unless otherwise agreed in writing between the Parties, the Delivery Service is provided to you in your company’s capacity, and you shall not: (i) transfer or authorise the use of your OpenAir Account to any other person or organization; (ii) disclose any data or information in your OpenAir Account to any other person or organization; or (iii) resell the Delivery Service to any other person or organization.
b). OpenAir reserves the right to engage third parties to perform any part of the Delivery Service on its behalf.
c). The Sender shall use the Delivery Service only for the purpose of placing the delivery orders in a legitimate and lawful manner.
d). OpenAir does not at any time hold title in or ownership of the Cargo.
3. PRICING
a). The Sender shall pay OpenAir for the Delivery Service according to the relevant fees or charges set out in the service contract (s) between OpenAir and The Sender (“Fee”). For the avoidance of doubt, there may be other fees applicable, including but not limited to applicable insurance fees or repackaging fees which may be invoiced to the Sender, separate from and in addition to the Fee.
b). OpenAir retains the right to revise such fees or charges at any time for any reason whatsoever (including government obligations, higher costs, or internal commercial targets) upon providing you with 30 days’ prior written notice. OpenAir is under no obligation to provide any reason for such revision.
c). OpenAir retains the right to charge additional fees (not limited to those referred to in Clause 3(a) above), including if the Sender provides wrong or incomplete order information (including delivery address or identity of Recipient).
4. PAYMENT
a). The Sender shall pay the Fee to OpenAir on a monthly basis, and no later than 15 Working Days from the date it receives the monthly invoice from OpenAir.
b). If the Sender fails to pay the Fee in full within the prescribed period in Clause 4(a) above, OpenAir shall be entitled to: (i) suspend or cancel the Delivery Service provided to the Sender; and (ii) charge a late payment interest of 5% per annum on such unpaid amount from the date immediately following the due date until the date on which the Sender has paid all outstanding dues and all accrued interest.
c). OpenAir reserves the right to request a deposit from the Sender which can be applied to overdue outstanding invoices as a condition to providing the Delivery Services.
5. DELIVERY PROCESS
Types of Delivery Services (all times referred are “Local Time”)
a). Standard: delivery of the cargo on-demand at any time between 9.00 am to 10.00 pm.
Commencement and Completion of Delivery Service
b). Delivery Services are considered to have:
commenced when the drones collects the cargo from the Sender and the Sender confirms through the OpenAir mobile application; and
completed when the Cargo has been delivered to the Recipient.
c). The ePOD is proof of the Delivery Service having taken place.
Collection or Pick-up of the Cargo
d). OpenAir reserves the right to reject a pick-up request if it is in bad weather.
e). The pick-up slots and the minimum pickup surcharge are defined and agreed in the service contract (s) between OpenAir and The Sender.
f). OpenAir has the right to reject or pick-up partially if the pick-up volume differs from that stated in the delivery order. The Sender must acknowledge the quantity of the Cargo handed over to the drones by signing on the OpenAir App electronically (no physical signature is required).
Right Not to Deliver
g). OpenAir retains the right to suspend its Delivery Service for any reason whatsoever, including if the Sender:
fails to pay the Fee in full within the prescribed period in Clause 4(i) above;
is in breach of any of these Terms and Conditions;
causes material loss or damage to OpenAir ; and/or
is, or is about to be, insolvent or bankrupt.
h). OpenAir reserves all rights to refuse or suspend the Delivery Service to the Sender if OpenAir determines in its reasonable discretion that:
the Cargo is unacceptable (as described in Clause 6(ii));
the Cargo violates any of the Sender’s Warranties (see Clause 7 and Clause 8);
the Sender is unable to pay for the Delivery Service in a timely fashion;
OpenAir is unable to perform its obligations due to circumstances beyond its reasonable control (e.g. natural disasters, strikes, major traffic accidents);
the Delivery Service is used by the Sender for unlawful purposes (including bribery);
any third party (other than the Sender) has used the Sender’s OpenAir Account in breach of Clause 2(i) above; or
the Sender has misled OpenAir (e.g. providing incorrect operational parameters such as weights, addresses, etc., or falsifying any order or Cargo information).
6. SHIPMENTS
Unacceptable Cargo
a). OpenAir reserves all rights to refuse delivery, refuse return, or (in the case of damage) dispose of unacceptable Cargo.
b). A Cargo is unacceptable if:
it is hazardous, illegal, dangerous, harmful, prohibited or restricted under any applicable laws;
it is not labelled properly or does not adhere to packaging guidelines set out in the Contract (s); and/or
it contains credit/debit/ATM cards, decaying items, human or animal remains, religious artefacts, narcotics, firearms or weapons, living things, perishables (e.g. vegetables, fruits, meat, etc.), requires cold chain or temperature controlled handling, poisonous or toxic substances, examination certificates, passport and insurance documentation which are not permitted to be reproduced, cash, cheques, bills, stock certificates, securities, written drafts, original films, tapes and film material which are not permitted to be reproduced, flammable, ignitable, or volatile items (e.g. fireworks, kerosene, gas canisters, paint thinner, etc.), or
the sum of its dimensions (length + breadth + height) or its weight is not aligned with the signed Contract
7. SENDER’S WARRANTIES
The Sender hereby represents and warrants to OpenAir that:
a). it is the owner (whether legal or beneficial) of the Cargo, or is duly authorised to engage the Delivery Service in respect of the Cargo;
b). it has complied with the packaging guidelines set out in Appendix 1;
c). the Cargo was packed and handed over to OpenAir in a secure manner without any unauthorised interference;
d). it has complied with all applicable laws and regulations in relation to the nature, condition, packaging, handling, storage and transportation of the Cargo, and is not in violation of any of the provisions stipulated in the applicable laws;
e). it has complied with all applicable customs, import, export, data protection laws, sanctions, embargoes and other laws and regulations;
f). it has obtained all necessary consents in relation to personal data provided to OpenAir including the Recipient’s data as may be required for transport, customs clearance and delivery, such as email address and mobile phone number;
g). all information provided by the Sender or its representatives to OpenAir is true, complete and accurate;
h). its use of the Delivery Service is legitimate, and the Sender will not deceive OpenAir to enrich itself by any means (fraud or otherwise), including through events, promotions or campaigns conducted by OpenAir ; and
i). it shall assist OpenAir in the event of any regulatory investigations.
8. INDEMNITY AND LIABILITY
a). OpenAir will provide compensation only for the damaged or lost item(s) of the Cargo, and not for the entire Cargo.
b). Unless the Sender purchases insurance separately from OpenAir , OpenAir ’s aggregate liability arising out of or in connection with the Delivery Service shall not exceed $100K or the Cargo value, whichever is lower, subject to applicable laws.
c). OpenAir is not liable for any damaged/lost/undelivered Cargo arising out of circumstances beyond its control. This includes:
unacceptable Cargo(s) (as described in Clause 6(b));
the Sender violating any applicable laws and/or the Cargo being confiscated by any governmental or regulatory authorities;
hijacking, theft, or robbery of the Cargo (or any part thereof) or the consignment which the Cargo was a part of;
any “force majeure” events, such as natural disasters, explosions, wars, riots, strikes or forms of civil unrest, outbreaks of diseases, traffic obstructions, or mechanical breakdown;
breach of the Sender’s Warranties in Clause 7 above; and
inaccurate or false information provided by the Sender in connection with the Cargo (e.g. nature of Cargo, origin of Cargo, Recipient’s address, etc.).
d). OpenAir will only acknowledge loss and damage claims that are submitted either within 30 days after the order was created or within 7 days after successful delivery of the Cargo.
e). The Sender will receive the agreed compensation within 7 working days from such time as the Cargo has been declared lost or damaged by OpenAir and in any case no longer than 30 days from the submission of any such claim by the Sender.
f). The Sender shall indemnify OpenAir in full and hold OpenAir harmless from any and all claims, losses, damage, lawsuits, judgements, including legal fees and costs, or damage or confiscation of other shipments, that may arise due to or as a result of:
a breach of any of the Sender’s Warranties in Clause 7 or Clause 8 above; or
the Cargo being an unacceptable Cargo (as described in Clause 6(b)).
9. INTELLECTUAL PROPERTY RIGHTS
a). The Parties agree that OpenAir remains the sole owner or licensee (as the case may be) of all intellectual property rights and know-how used by OpenAir in connection with the Delivery Service, including intellectual property rights relating to the OpenAir Software, and OpenAir ’s branding, logo or trademarks.
b). The Sender shall not copy, replicate, license, distribute, sell or otherwise make use of the OpenAir Software, or any intellectual property rights associated with the OpenAir Software, OpenAir ’s branding, logo or trademarks.
c). The Sender acknowledges that the OpenAir Software may be interrupted, hindered or otherwise disrupted during any development or update of the OpenAir Software, and that OpenAir shall not be liable for any losses or damages arising thereof.
10. CONFIDENTIALITY
a). All communications, information and other materials in relation to these Terms and Conditions, including the prices in relation to the Delivery Service, shall be considered confidential information and shall be kept confidential by the Sender and Recipient unless compelled or required to be disclosed requirements of law.
b). The rights and obligations of the Parties under this Clause 10 will apply even if the Delivery Service has been suspended or terminated.
11. TERMINATION
a). Either party wishing to terminate this Agreement may do so by giving 2 months’ notice in writing to the other party, subject to mutual agreement in writing by parties otherwise.
b). OpenAir may elect to terminate the contract without prior notice should:
the Sender caused serious damage through the intentional acts, omissions or gross negligence of the Sender; and
the Sender becomes insolvent or faces forced execution or auction or disposition for failure to pay taxes or public charges.
12. GOVERNING LAW AND DISPUTE RESOLUTION
a). These Terms and Conditions are governed by the laws of Malaysia. The Parties agree to submit any disputes to the non-exclusive jurisdiction of the courts of Malaysia.
13. MISCELLANEOUS
a). OpenAir reserves the right, at its sole discretion, to change, modify, add or remove these Terms and Conditions from time to time, with such revised Terms and Conditions applying to the Parties.
b). A person who is not a party to these Terms and Conditions has no right to enforce or enjoy the benefit of these Terms and Conditions.
c). Any provision of these Terms and Conditions which is held to be illegal, invalid or unenforceable shall be severed and the remaining part of such provision and all other provisions of these Terms and Conditions shall continue to remain in full force and effect.
d). The Sender shall not assign or transfer any of its rights and/or obligations under these Terms and Conditions, except with the prior written approval of OpenAir.
e). The Sender warrants that any personal data provided (whether of itself or its Recipient) for the purpose of OpenAir performing Delivery Services is accurate and complete, and has been provided with its and the Recipient’s express written consent (as the case may be), in accordance with applicable personal data regulations and OpenAir ’s privacy policy set forth at https://vn.openair.mobi/en/privacy-policy as, the terms of which are incorporated into these Terms and Conditions by this reference.
14. OPENAIR’S CONTACTS
a). OpenAir will remain contactable for all enquiries, whether from the Sender or the Recipient, through its email sendercare@openair.mobi
15. SUPERSEDENCE
This Agreement supersedes all prior agreements and understandings, whether oral or written, in connection therewith.