Airspace Technologies Service Agreement
Customer agrees that all shipments will be subject to the terms and conditions of this Agreement and Airspace’s standard waybill (whether or not an individual waybill accompanies such shipment). Customer also agrees to these terms and conditions on behalf of any third party with an interest in the shipment. A copy of the current terms and conditions of Airspace’s standard waybill are attached hereto and are incorporated herein by reference. In the event of any conflict between the terms of this Agreement and Airspace’s standard waybill, the terms of this Agreement shall take precedence.
Airspace agrees to perform the following services: Time sensitive transportation; including next-flight-out services and local transportation, subject to availability. Services that are not referenced in this Agreement require Airspace to provide custom pricing and service solutions and require the execution of a separate agreement with Customer. Each party acknowledges that no other inducements, representations, promises or agreements, orally or otherwise, have been made by any party. It is understood and agreed that this Agreement is not exclusive, and it is understood that Airspace is free to accept shipments from companies other than Customer.
Customer and Airspace may terminate this Agreement at any time upon written notice to the other party. No termination of this Agreement shall relieve the Customer of its obligation to pay Airspace for transportation services actually rendered to Customer either before or after such termination.
By affixing their signatures on this document, each party represents and warrants that they have the authority to enter into this Agreement, and that they agree to the terms and conditions set forth herein.
WAYBILL TERMS AND CONDITIONS
Agreement to Terms. In tendering any shipment under this Agreement, Customer agrees to these Terms and Conditions which no agent or employee of Airspace may alter. Airspace’s standard waybills may be prepared by Customer or by Airspace with Customer’s authority and on its behalf without alteration or modification of any kind.
Services. Airspace will provide transportation services as requested by Customer and will arrange for air and surface transportation as required. Airspace reserves the right to use agents or other third parties to fulfill these services.
Payment for Services. Payment is due net thirty (30) days via Automated Clearing House (ACH) or wire transfer funds. Customer must have established an account with Airspace prior to pick-up. Shipments will be charged based on the greater of actual weight or dimensional weight (defined as length times width times height of the outside of the package, divided by 194, i.e., DIM weight). Rates and quotes provided by Airspace employees and agents are based upon information provided by Customer. Final rates may vary based upon actual shipment size, weight and services rendered. Customer will always be primarily responsible for shipping costs, despite any alternate payment instructions, as well as any cost incurred in either returning the shipment or warehousing it pending its disposition. Customer authorizes Airspace and Customer’s financial institution to receive and exchange credit information about Customer both now and in the future. Customer’s signature attests to the ability and willingness to pay Airspace invoices in accordance with the following terms: payment due within 30 days of invoice receipt. It is important to note that Airspace credit approval is a condition of this agreement. For each subsequent year after Effective Date, Airspace will implement a 4% increase on all rates declared in the Airspace Technologies Tariff that accompanies this Airspace Service Agreement.
Shipment Weight and Inspection. All freight tendered to Airspace is subject to reweighing and recalculation of charges based on such reweighing. Increments over one pound are rounded to the next pound. All shipments are subject to inspection by Airspace at its discretion without notice.
Customer’s Responsibility. Customer is responsible for adequately preparing, marking, packing, packaging, labeling and properly describing the contents of the shipment so as to ensure safe transportation with ordinary handling. Customer must comply with all applicable local, state and federal laws, including those governing packing, packaging, marking and labeling for all shipments. Customer is responsible for any errors in completing the waybill that may result in additional billing, including, but not limited to incorrect addresses, incorrect weight information and incorrect pick-up or delivery times. If Customer communicates to Airspace that no delivery signature is required, Airspace shall not be responsible for any loss that occurs after the delivery of shipment.
International shipments / Customs.
- The Customer shall observe all national and international laws relevant for the shipment, including but not limited to requirements for packaging, documentation, and transportation. Any shipment originating or delivered outside of the United States of America will be considered an international shipment. Furthermore, the Customer shall comply with regulations on transportation of dangerous goods in the country of departure, transit, and destination when preparing the shipment.
- The Customer shall be invoiced for any customs fines, warehousing charges imposed by customs officials, or expenses incurred if the Customer, shipper, or consignee does not submit complete export documentation, licenses, or permits.
- If Airspace is to handle customs clearance, the Customer shall submit all necessary information and documentation as required by Airspace. The invoice recipient for import taxes and duties (Customer, consignee, or shipper) shall be determined following acceptance of the order, whereby the Customer will be invoiced if the invoice is not paid within thirty (30) days of receipt.
- If the Customer does not require Airspace to clear customs, it shall arrange for payment of any applicable export and import duties and customs clearance fees before delivering the goods to Airspace.
- Airspace shall commission its own customs clearance broker(s), if customs clearance by Airspace has been agreed upon pursuant to an explicit supplementary order from the Customer.
- Airspace is not liable for any damage howsoever caused arisen from any act or omission by Customer, its employees and/or its subcontractors, in relation to customs clearance.
Import and Export Laws. Customer is solely responsible for complying with all applicable U.S. and non-U.S. laws governing the export, re-export, import, transfer, transshipment, release, delivery and pickup of all shipments, as well as any software provided to Airspace on behalf of Customer, including (i) properly classifying shipments for customs purposes, (ii) obtaining all required licenses and other authorizations for the export, re-export, import, transfer, transshipment, release, delivery and pickup of all shipments, (iii) ensuring that all export- and import-related documents, including shipping and sales documents, generated in connection with any shipment conform to any applicable import and export control laws, and (iv) providing accurate written instructions to Airspace in connection with any shipment governed by applicable import and export control laws.
Dangerous goods / Packaging / Labeling. Customer agrees to follow all provisions in Exhibit A.
Right of Refusal. Airspace reserves the right to refuse or reject any shipment and may do so in its sole discretion and without liability. Airspace may exercise this right at any time and includes situations (among others) when a shipment may cause damage to or delay other shipments, property or personnel; is likely to sustain damage or loss in transit due to improper packaging; contains prohibited items; the account of Customer is not in good standing; or when acceptance of a shipment may jeopardize Airspace’s ability to provide service to other customers.
Undeliverable Shipments. Airspace will hold undeliverable shipments and will notify Customer. If Customer cannot be notified, the shipment will be held for thirty (30) days after the attempted delivery date. After thirty (30) days, the shipment will be disposed of at Airspace’s discretion. Customer will be responsible for all transportation, delivery attempts, storage and disposal charges.
Special Arrangement Required. Shipments weighing in excess of one hundred (100) pounds and/or shipments of which the sum of the greatest outside length plus the greatest outside height plus the greatest outside width (i.e., DIM weight) exceeds ninety (90) inches will require additional detailed steps to ship. For further information regarding larger shipments please Contact Airspace Operations Support at (855) 524-7772.
Limitation on Liability and Liabilities Not Assumed. UNLESS CUSTOMER DECLARES A HIGHER SHIPMENT VALUATION AND PAYS AN ADDITIONAL FEE, AIRSPACE’S LIABILITY FOR ANY LOSS, DAMAGE OR DELAY TO OR INVOLVING A DOMESTIC SHIPMENT (WHICH SHALL INCLUDE ALL DOCUMENTS OR PARCELS CONSIGNED TO AIRSPACE UNDER A SINGLE AIRBILL) IS LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS ($100.00 US) OR THE ACTUAL VALUE OF THE SHIPMENT. AIRSPACE RESERVES THE RIGHT TO USE OTHER AIRCRAFT PROVIDERS AND SUBCONTRACTORS IN THE TRANSPORTATION OF CUSTOMER’S SHIPMENT. ANY EXCLUSION OR LIMITATION ON LIABILITY APPLICABLE TO AIRSPACE SHALL APPLY TO AIRSPACE’S AGENT, SUBCONTRACTORS AND EMPLOYEES AND TO ANY PERSON WHOSE AIRCRAFT OR EQUIPMENT IS USED IN THE TRANSPORTATION OF THE SHIPMENT. AIRSPACE SHALL NOT BE LIABILE FOR LOSS, DAMAGE, DELAY OR OTHER RESULT CAUSED BY ANY CIRCUMSTANCES BEYOND THE CONTROL OF AIRSPACE, INCLUDING, BUT NOT LIMOITED TO WEATHER, GOVERNMENTAL ACTION, MECHANICAL DELAYS, ACTS OF GOD, STRIKES OR LABOR DISPUTES, CIVIL COMMOTIO, WAR, TERRORISM, FUEL SHORTAGES, ANY ACT OR DEFAULT OF CUSTOMER OR COMSIGNEE, INHERENT VICE OR DEFECT OF SHIPMENT, OR VIOLATION BY CUSTOMER OR CONSIGNEE OF ANY OF THESE TERMS AND CONDITIONS.
AIRSPACE WILL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF INCOME; WHETHER OR NOT AIRSPACE HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.
Declared Value Limits. Customer may elect to declare a higher valuation for loss or damage purposes (other than damages caused by delay) by designating the amount in the Declared Value on the face of an individual waybill and paying a fee (currently $0.55 per $100) for any valuation in excess of $100. Declared values for items of extraordinary value cannot exceed $500. Items of extraordinary value include shipments containing such items as artwork, jewelry, furs, film, precious metals, currency, bank notes, negotiable instruments or other unique one of a kind items. For all other shipments, the declared value may not exceed $10,000. Any declared value in excess of $10,000 must be pre-approved by Airspace prior to shipment. Arrangements for declaring values in excess of $10,000 can be made by calling Airspace Operations Center at (855) 524-7772. In the event Customer should declare a higher shipment valuation in accordance with this requirements of this provision, Airspace’s maximum liability shall be the value so declared or the actual value of the shipment, whichever is less. Customer is responsible for proving the actual loss or damage.
Claims. All Claims for lost or damaged shipments must be made in writing and received by Airspace at its offices located at 5909 Sea Otter Place, Suite 200 Carlsbad, CA 92010 within fifteen (15) days after the date of acceptance of the shipment from Airspace. Any damaged shipment and its original packing material must be made available to Airspace for inspection at the delivery location shown on the waybill. Airspace is not obligated to act on any claim until Customer has paid all charges related to such shipment. The amount claimed cannot be deducted from outstanding charges related to shipments processed under the this Agreement or any other waybill. Customer is responsible for providing adequate documentation to support the actual or declared value of the loss.
Confidentiality. As used herein, “Confidential Information” means any written document, electronic data or correspondence, proprietary software, pricing information and any other information relating to the business, technology, operations or financial condition of Airspace that a reasonable person would consider confidential or proprietary based on the nature of the information or the circumstances regarding its disclosure. Customer will not disclose such Confidential Information to any third party without the prior authorization of Airspace or as required by law. Customer shall exercise the same degree of care to avoid disclosure of such Confidential Information as its employs with respect to its own proprietary data, but not less than reasonable care.
Publicity. Customer agrees that Airspace may use Customer’s name and logo to identify Customer as a customer of Airspace on Airspace's website, and as a part of a general list of Airspace customers for use and reference in Airspace corporate, promotional, and marketing materials. Customer agrees that Airspace may issue a press release identifying Customer as an Airspace customer and describing the nature of the services to be provided. The content of any press release using Customer’s name will be subject to Customer's prior approval, which will not be unreasonably withheld.
Customer also agrees to assist Airspace in its preparation of a press release announcing Customer as a new Airspace customer, which may include Customer participating in any of the following (i) providing a quote from a senior executive for use in Airspace marketing materials; (ii) provide Airspace with a file containing Customer’s logo(s) for use on Airspace web site and in its sales collateral; (iii) assisting Airspace in the preparation of a video case study for external use that details Customer’s use of the Services; and (iv) upon request, serve as a reference to media and/or industry analysts and to Airspace potential customers and investors.
Choice of Law. These Terms and Conditions shall be interpreted and enforced according to the laws of the State of Delaware or applicable federal law.
Customer Airspace Technologies, Inc.
“Dangerous Goods” means those commodities that are imported, exported or otherwise transported in accordance with the provisions set forth in one or more of the following:
- Title 49 of the U.S. Code of Federal Regulations (“CFR”). The only Dangerous Goods accepted for air transport under 49 CFR are ORM-D (Consumer commodities), and only for transportation within and between the United States and Puerto Rico.
- The “Dangerous Goods Regulations” published by IATA.
- The “Technical Instructions for the Safe Transport of Dangerous Goods by Air” published by the International Civil Aviation Organization (“ICAO”).
- Other mandatory applicable law.
The transportation service for shipments containing dangerous goods is to be accompanied by a separate waybill.
- The Customer must declare dangerous goods commodities upon tender of shipment to Airspace.
- The Customer shall ensure that dangerous goods are packed safely and appropriately and is liable for any damages resulting from improper packaging, marking, packing or labeling. All dangerous goods shall comply, as applicable, with the IATA Dangerous Goods Regulations, International Maritime Dangerous Goods Regulations (IMCG), the United States Department of Transportation (DOT) Title 49 of the U.S. Code of Federal Regulations (“CFR”), Commission Regulation (EU) No. 965/2012 on Air Operations, and relevant ICAO Technical Instructions and the European Agreements Concerning the International Carriage of Dangerous Goods by Rail (RID) and by Road (ADR) and any other national or international provision with respect to their classification, type of packaging, marking, packing, handling and labeling of Dangerous Goods.
- Prior to the transportation of any Dangerous Goods, Customer shall provide Airspace with a current Material Data Safety Sheet, a Shipper’s Declaration of Hazardous Goods and any other Dangerous Goods document required to be prepared in connection with a Dangerous Goods shipment.
- Depending on the mode of transportation, infectious substances such as blood, urine, etc., that fall under the UN3373 category must be packed and labeled pursuant to IATA DGR Packing Instructions (air freight), or RID Instructions P650 (rail/road/sea). The package must accordingly contain leakproof primary and secondary containers each with approved packaging materials and the container must meet the specified test criteria.
- Each consignment shall be marked legibly and durably with the name, street address, city, country, and postal code of the shipper and consignee. The outside of the container shall bear the proper shipping name(s), technical names, and UN ID#s of the contents. In addition, a 24-hour emergency contact that can provide details of the contents during the period of transportation shall be clearly indicated. A shipper’s document, which clearly identifies and describes the contents, shall be placed inside the packaging of each dangerous goods shipment.
- The Customer shall ensure that dry ice consignments contain an adequate quantity of dry ice to keep the contents cool as long as necessary/required. In the event of unforeseen difficulties or if the Customer alters the arrangements, etc. Airspace shall not be required to refill the container with dry ice during transportation.
- Airspace reserves the right to accept and/or decline any consignment of dangerous goods from Customer.
- Airspace reserves the right to return a dangerous goods consignment that leaks, releases odors, has damaged packaging, or is otherwise damaged, to the Customer. The Customer shall bear all costs regarding the shipment, such as transport back to the Customer, destruction of the consignment, measures taken to prevent accidents, etc.
- Acceptance of a consignment of dangerous goods by Airspace does not automatically guarantee acceptance by the intended carrier.
- Customer shall indemnify, defend and hold harmless Airspace its officers, employees and agents against any and all claims, liabilities, losses, fines, reasonable attorneys’ fees and legal expenses arising out of or related to the exposure to or release of any Dangerous Goods, including without limitation, fines or expenses relating to the removal or treatment of Dangerous Goods or any other remedial action pertaining to Dangerous Goods under federal, state or foreign law.
Explanation of Exhibit: This exhibit contains a non-exhaustive list of charges that may be applied to a shipment placed by Customer. The intention of Exhibit B is to provide useful information to Customer so that Customer can understand charges that may be applied to Customer’s shipment; items listed in Exhibit B are included for illustrative purposes only. A shipment placed by Customer may have unique conditions and circumstances that affect final shipment assessorials that are not included in this list or are “spot-quoted’. These definitions are not legally binding and do not exhaustively explain cases in which charges could be applied to a shipment.
- Air and drive charges include 15 free miles from each airport on a door-to-door air shipment or origin location on a drive only shipment
- Air charge weight breaks are determined by the largest piece in a shipment based on the either actual or DIM weight (whichever is greater)
- Additional pieces are charged regardless of consolidation unless specifically requested by customer (for select packages)
- Van charges are incurred when any of the following are true for one or more pieces in the shipment (1) the greater of actual or dimensional weight exceeds 75lbs (dimensional weight is calculated by (L*W*H) divided by 194) or (2) L/W/H breaks any of the following dimensions: 34x24x24
- After hour, weekend, and holiday charges are billed per driving segment and are applied to orders where the pickup or delivery occurs during the defined time (holidays include New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day)
- Attempt or Cancellation charges are incurred if a driver is en route to a location and shipment is cancelled or the driver is unable to complete pickup or delivery due to customer or shipper error
- Change of Address charges are incurred in any instance where an address is changed more than 5 minutes after an order has been confirmed. Any additional mileage will be charged as well.
- Print Documents charges are incurred if an Airspace driver is required to print documents
- Waiting for Documents charges are incurred if documents are not provided for a shipment within 30 minutes of the order confirmation (if documents are not provided within 120 minutes of order confirmation, a pick and hold charge will be incurred)
- Pick and hold charges are incurred if the package is held overnight for morning delivery, or if documents are not provided within 120 minutes of order confirmation
- Add stop charges are incurred in any instance where Airspace must make an additional stop that is not the origin or destination. If the additional stop is more than 5 miles from the original delivery, the customer will be charged the per mile rate for the increased distance.
- Wait time charges are incurred after the first 15 minutes at pickup or delivery; wait time at the airport only occurs after 30 minutes at the airport for tender or recovery
- Fuel surcharge is applied to base, vehicle type, additional weight, and mileage
- Remote pickup Surcharge (RPS) is a percentage surcharge applied to the total base cost of a shipment if the origin pickup location zip code is outside the metropolitan statistical area (MSA).
- Lifeguard service (including Medivac, dash critical, or PPS critical) are charged per piece
- Shipments >100 lbs or 90 linear inches are quoted independently of any rates reflected here