Last Updated –- February 27, 2024

Terms and Conditions

 

Drayup Inc. (“Company”) operates https://drayup.com/ and all subdomains.  By visiting Company website, web portals and/or mobile application(s) (collectively, the “Platform”) at any time, you and/or the individual or the entity you are representing (“User” or “Depositor”) hereby agree to be bound by the following terms and conditions (“Terms and Conditions”).  If you are accepting and/or executing on behalf of another individual or entity, you represent and warrant that you have the full legal authority to bind such individual or entity to these Terms and Conditions. By accepting these Terms and Conditions and/or using the Platform, User hereby agrees that these Terms and Conditions constitute a legally binding agreement.  These Terms and Conditions include information about future changes to these Terms and Conditions, billing including recurring billing, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. IF USER DOES NOT AGREE TO TERMS AND CONDITIONS OR CONSENT TO DO BUSINESS ELECTRONICALLY, DO NOT USE THE PLATFORM OR SERVICES. 

  1. Overview.

1.1. User may access and use certain services through the Platform including but not limited to Yard Storage Service, Yard Services, and other services available now or in the future through or connected to the Platform (“Services”).  Not all Services are available to all Users.  Users use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and User understands and agrees that by using or participating in any such Services, User agrees to also comply with these Additional Terms.            

 

1.2. Eligibility.  Users must be at least 18 years old to use the Platform and/or Services and the Platform and/or Services.  By agreeing to the Terms and Conditions, you represent and warrant that you are: (i) at least 18 years old; (ii) that you have not previously been suspended or removed from the Platform and/or Services; and (iii) that your registration and/or use of the Platform and/or Service is in compliance with any and all applicable laws and regulations.

 

1.3. Creating an Account. To use the Services, a User must register for an account (“Account”) via the website at https://drayup.com/ or on the Company mobile application and provide certain information as prompted by the registration form. Company may register an Account on behalf of User subject to User validating the account.  User represents and warrants that all information submitted is truthful and accurate at the time it is submitted and/or validated. User is responsible for maintaining the confidentiality of its login credentials and is fully responsible for all activities that occur under its Account. User agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use, of the Account or any other breach of security. Company is not liable for any loss or damage arising from User’s failure to comply with these requirements.

 

1.4. Personal Information and Privacy.  The Platform stores and processes personal data that User provides and/or has provided to Company. It is User’s responsibility to keep User’s devices and access to the Platform secure. The Privacy Policy governs Company’s use of User’s personal information and is available at https://drayup.com/static-pages/privacy-policy and is expressly incorporated herein by reference (“Privacy Policy”).

 

1.5. Performance of the Services. To use the Services or access the Platform, User needs compatible hardware, software, and, in some cases, internet access and/or a mobile phone; the performance of the Services and/or Platform may be affected by these factors.

 

1.6. Use of Third-Party Services. Certain of the Services are not provided by Company. As such, with respect to such services, Company serves merely as a conduit through which a User may purchase, license, or otherwise obtain their use. Company makes no representations or warranties regarding any services provided by other third-party providers of software (“Third-Party Vendors”). By using one of these Services, User agrees that we may transfer the relevant data to the Third-Party Vendor.  For the avoidance of doubt, the provisions of these Terms and Conditions apply equally to those Services provided by Third-Party Vendors as well as the Services provided directly by Company.  To access certain Services, User may be required to pay fees to Third-Party Vendors and accept their contractual terms and conditions.  These fees and compliance with contractual terms are between User and/or Third-Party Vendor.  The Third-Party Vendor is solely responsible for its content, warranties, and claims that User may have, consistent with these Terms and Conditions.

 

1.7. Geographic Restrictions - The Platform, and certain content available within the Platform including specific Services, are currently available in certain countries.  User agrees not to present any false, inaccurate or misleading information in an effort to misrepresent yourself as a resident of a supported state or country, and User will not attempt to circumvent any restrictions on access to or availability of the Platform or Services.

 

1.8. Inapplicability of Other Terms and Conditions. Any terms and conditions on any transactional or shipment-specific document, including any bill of lading, dock receipt, or similar documentation exchanged in connection with a shipment offered by a shipper or transported by User shall not apply to any services performed by Company or any Third-Party Vendor and shall not be binding on or applicable to Company.

 

1.9. Service Area / Interruptions. Since the Platform is internet based, it may be interrupted or negatively affected by items outside of the control of Company. Company is not liable to User for interruptions of or problems with the Platform and/or Services caused by acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services obtained by you or Company, virus attacks or hackers, failure of third party software (including, without limitation, e-business software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for the Services; failure of access circuits to Company’s computer network; DNS issues; issues with FTP, POP3, SMTP, or any items relating to your access to the Services; your acts or omissions (or acts or omissions of others engaged or authorized by you, including, without limitation, custom scripting or coding (e.g., COI, Perl, HTML, ASP, etc.), any negligence, willful misconduct, or use of Services in breach of this Agreement; e-mail or WebMail delivery and transmission; or outages elsewhere on the Internet that hinder access to the Platform and/or Services.

 

1.10. Mobile Device. To access certain Services, User may be required to pay fees imposed by its wireless carrier, including but not limited to, SMS text messages, data or WAP services fees, roaming, air time, excess minutes or excess data fees in order to access the Services and all such fees are the sole responsibility of the User and you consent to the use herein.

 

1.11. Safety and Access.  User may only access and use the Platform as authorized by the Terms and Conditions and any other materials Company provides. Company is not liable to User for any unauthorized access or misuse of the Service and Platform. User may not use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of the Platform. User may not attempt to gain unauthorized access to the Platform, computer systems or networks connected to the Platform, through hacking, password mining, or any other means. User agrees not to engage in any activities with respect to the Platform that are contrary to any applicable laws, rules, and regulations.  User further agrees to: (1) not to use the Service while driving, and (2) to either only use the Service after you have stopped your vehicle in an appropriate location permitted by law or have a passenger other than the driver use the Service, provided it does not interfere with the due course of driving and does not distract the driver.

 

1.12. Changes/Upgrades to Services. Company may modify or change the Services and any related fees (as defined below) at any time.  Company will notify you via the e-mail provided by you during registration and/or post the changes to these Terms and Conditions. User’s continued use after such modification(s) or change(s) are made constitutes your acceptance of such changes to the Terms and Conditions, Service and/or fees.

 

  1. Services

    2.1. Yard Storage Service.   

2.1.1. “Yard Storage Service” means the outdoor storage service between Company and a User which are governed by the Yard Storage terms and conditions included in Exhibit A to these Terms and Conditions (“Yard Storage Contract”) which is incorporated herein by reference.  Capitalized terms not defined herein will carry the same meaning as presented in the Yard Storage Contract.

 

2.1.2. If User uses Yard Storage Service, all charges for Yard Storage are per 24-hour period, with any fraction of a 24-hour period, such as one hour, to be subject to the charges for the entire 24-hour period (each, a “Storage Day”). Yard Storage begins at the time and date of User’s in-gating of Goods into the Yard.

 

2.1.3. For reserved Yard Storage, User shall make a reservation on the Platform and prepay for the number of Storage Days User requests (“Daily Storage Yard Reservation”) or for a monthly period with automatic monthly billing (“Monthly Storage Yard Reservation”) where each Daily Storage Yard Reservation and Monthly Storage Yard Reservation are considered “Yard Storage”).  User must prepay for Yard Storage by credit card (“User’s Payment Method”) as described in further detail below in Section 4 and all payments are subject to the credit card fee and/or other fees disclosed at the time of booking. Subject to space availability, Company may, in its sole discretion, accept unreserved Yard Storage on a drive-up basis which Company shall charge for the prepayment for the number of Storage Days User requests.  All Monthly Yard Storage Reservations will have an automatic renewal and unless cancelled or auto-renewal is turned off at least 24-hours before the end of the current period, Company will charge the User’s Payment Method provided at the end of each monthly period for the next monthly period until the Monthly Yard Storage Rental is cancelled.  Company reserves the right to adjust the fees for the next billing cycle upon seven (7) days’ notice to User.  Any monthly renewal of your Monthly Yard Storage Reservation will be billed at the applicable Fees in effect at the time of the renewal. You will not receive billing statements. Billing statements and auto-renewal may be accessed by User in the Platform and such statements, if any, will contain the fees charged and the date of such charge. All Services must be prepaid or authorize recurring charges prior to Containers entering the storage yard.  Any questions or claims regarding billing can be directed to Company’s customer service. To dispute a charge, User must contact Company’s customer service within sixty (60) days after the date of the charge in question, otherwise User waives its right to dispute the charge.

 

2.1.4. Cancellation of Storage Days

2.1.4.1. Cancellation of a Daily Storage Yard Reservation in “Pending” or “Confirmed” status (“Non-Checked-In Status”) may be completed in advance of a Daily Storage Yard Reservation upon notice to Company or cancelling the reservation within the Platform.  User may be eligible for a refund for a Daily Storage Yard Reservation subject to the overall available spaces available at the storage yard (“Capacity”) at the time of cancelation.  A User is eligible for a full refund of a Daily Storage Yard Reservation if the cancelation is made at least seventy-two (72) hours prior to the start date of the Daily Storage Yard Reservation.  If the Capacity is equal to or below twenty-five (25) spaces, a User is eligible for a full refund if the cancelation is made at least twenty-four (24) hours prior to the start date of the Daily Storage Yard Reservation. All other cancellations are subject to payment of the entire Daily Storage Yard Reservation according to these Terms and Conditions.  Refunds may take up to fourteen (14) days to process.

 

2.1.4.2. Cancellation of a Monthly Storage Yard Reservation must be made at least twenty-four (24) hours prior to the end of a billing cycle by contacting Company’s customer service.  Monthly Storage Yard Reservations may not be cancelled if the reservation is in use by User. There are no refunds for Monthly Storage Yard Reservations.  

 

2.1.5. All other cancellations are subject to payment of the entire Daily Storage Yard Reservation according to these Terms and Conditions.  Refunds may take up to fourteen (14) business days to process.

 

2.1.6. If any Goods remain at the Yard after the end of the prepaid period of Yard Storage, then Company reserves the right to immediately charge User’s Payment Method for another Storage Day, and then daily for each subsequent Storage Day or in Company’s sole discretion for Monthly Yard Storage Reservation automatically bill the next monthly period.

 

2.1.7. If User’s Payment Method does not work to make any payment due or if User disputes the payment charged to User’s Payment Method, then Company shall immediately e-mail User, which shall have 24-hours to pay any balance due using an alternative payment method. User’s failure to pay using an alternative method or to reactivate User’s Payment Method will trigger Company’s lien rights and remedies under the Yard Storage Contract and at law.

 

2.2. Yard Services.  "Yard Services” means yard services other than Yard Storage Services, including but not limited to lifting, grounding, spotting, moving, loading, unloading, and transloading of equipment and goods requested to be performed by User from time to time through the Platform. The User agrees to all obligations of any terms and conditions, including fees, for the Yard Services with Company via the Platform and with any Third-Party Vendor. User understands that Company may receive rebates, discounts, or other consideration from such Third-Party Vendors and User Agrees that Company may retain 100% of those amounts.

2.3. Other Services.  Other Services may be offered to the User from time to time through the Platform.  The User agrees to all obligations of any terms and conditions, including fees, with the Third-Party Vendor.  User understands that Company may receive rebates, discounts, or other consideration from such Third-Party Vendors and User Agrees that Company may retain 100% of those amounts.

 

  1. Term and Cancelation. Unless otherwise required or modified by a Service, User’s Services will commence upon your acceptance of the Terms and Conditions and will continue on a month to month basis until cancellation by either you, Third-Party Vendor, or Company as provided herein.  Any cancellation will take effect according to the term of the Service and all access to the Service shall cease.  If your Service is suspended or cancelled, User will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein or other fees charged by the Third-Party Vendor.  Termination of Account will automatically trigger termination under Third-Party Vendor Services and may result in cancelation of acceleration of payments for such Services.  You will have a right, at any time, to cancel the certain Services upon notice to Company. Upon such notice, you will not receive a refund of any fees paid or fees owed for the Service was cancelled and any additional payments will be charged to the User’s Payment Method.      

     

  2. Fees and Charges

    4.1. In General. To pay all fees and charges for use of the Services, a User shall either (i) provide Company with a valid credit card or (ii) agree to pay the Third-Party Vendor directly, if available (“Direct Pay”).  All transactions and/or sales of Services elected, authorized, or used by User are considered final.

     

    4.2. Platform Access Fees.  Company reserves the right to require requires payment of a software-as-a-service fee (“SAAS Fee”) for access to the Platform and/or certain Services.  All SAAS Fees will be disclosed to User and, unless otherwise noted, the SAAS Fees are due in advance of the Service being provided and will include all applicable sales tax and will be billed to you and transacted by Company or its designated Third-Party Vendor. All Services with a monthly per user fee will have an automatic renewal and unless cancelled or auto-renewal is turned off at least 24-hours before the end of the current period, the account that you provided for payment purposes will be automatically billed at the end of each monthly period until the Service is terminated. Company reserves the right to adjust the SAAS Fees (including adding a fee if one was not previously charged) upon seven (7) days’ notice to User. 

     

    4.3. Credit Card/Debit Transactions. For card-based transactions, User acknowledges that Company uses services provided by Stripe, Inc. for payment processing of credit card transactions. By using such services, User agrees to Stripe, Inc.’s Privacy Policy and Terms and Conditions, found at https://stripe.com/us/legal (“Stripe’s Legal Terms”) and authorizes Company through Stripe to bill the User’s credit card for the Services elected on the Platform in accordance with the Terms and Conditions.  Company is not responsible for any error by, or other acts or omissions of Stripe.  Company reserves the right to charge a fee for processing Credit Card Transactions.  All credit card transactions will be subject to the Credit Card Fee disclosed at the time of booking.  Some of the Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by User. By choosing a recurring payment plan, User acknowledges that such Services have an initial and recurring payment feature and User accepts responsibility for all recurring charges prior to cancellation. COMPANY MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM USER, UNTIL USER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY COMPANY) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR USER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE COMPANY REASONABLY COULD ACT.

     

    4.4. Direct Pay Transactions.  If enabled by a Third-Party Vendor in the Portal or for a Service, User acknowledges that any fees or charges assessed by Third-Party Vendor are the responsibility of User and may be due in advance of the provision of Service by the Third-Party Vendor.  Any payments made directly to the Third-Party Vendor will be made according to the terms and conditions of the Third-Party Vendor (“Direct Payment”).       

     

  3. Content.

    5.1. The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws and provided to User As IS. User may access Content for your information and personal use solely as intended through the provided functionality of the Platform and as permitted under these Terms and Conditions.  User agrees to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Platform, and User won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by User, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Company’s) rights.

     

    5.2. Subject to these Terms and Conditions, Company grants User a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Platform and/or Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Platform and/or Services is expressly prohibited without prior written permission from us. The Platform may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.

     

    5.3. Anything User posts, uploads, shares, stores, or otherwise provide through the Platform is a “User Submission”. User is solely responsible for all User Submissions contributed to the Platform and/or Services. User represents that all User Submissions submitted are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.

     

    5.4. User agrees not to post, upload, share, store, or otherwise provide through the Platform any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law. In order to display User Submissions on the Platform, User grants Company certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information. For all User Submissions, User hereby grants Company a license to translate, modify (for technical purposes, for example, making sure content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Platform and/or Services, as described in more detail below. This is a license only – User’s ownership in User Submissions is not affected. User further grants Company the license to use and exercise all rights in it, as permitted by the functionality of the Platform and/or Services including the right to sublicense and/or otherwise share the User Submission with Third-Party Vendors.

     

    5.5. If User provides Company (in a direct email, website submission, or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Platform and/or Services (each of the foregoing, a “Feedback Submission”), then User hereby grants Company an irrevocable, royalty free, worldwide, sublicenseable licenses to display, perform, use, copy, and distribute a Feedback Submission.

     

  4. General Terms.

    6.1. Licenses. Licenses to use the Services are provided by Company or Third-Party Vendors. Company is not a party to the any contract or user agreement between User and any Third-Party Vendor. The Third-Party Vendor is solely responsible for its content, warranties, and claims that User may have, consistent with these Terms and Conditions.

     

    6.2. Support. Company is responsible for providing support for the services it provides directly, or as required under applicable law. Third-Party Vendors are solely responsible for providing support for Third-Party Services.

     

    6.3. Governing Law and Choice of Forum. These Terms and Conditions and any action related thereto or related to Platform and/or Services shall be governed, controlled, interpreted, and defined by and under the laws in effect in the State of New York, without regard to conflicts of law principles. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, New York, and User hereby irrevocably submits to personal jurisdiction in such courts. The United Nations Convention on the International Sale of Goods is explicitly excluded from this Agreement.

     

    6.4. Contract Changes. Company reserves the right to add new or additional terms or conditions on User’s use of the Services and/or Platform. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms and Conditions and/or Privacy Policy. User’s continued use of the Services and/or Platform will be deemed acceptance of those modified or additional terms.

     

    6.5. Platform License.  Subject to the terms and conditions set forth in these Terms and Conditions, Company hereby grants User a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Platform and any information included therein. User’s access and use of the Platform are personal to you, and you may not transfer the license Company has granted to you or assign these Terms and Conditions to someone else, except as otherwise stated in this Agreement. However, User may access and use the Mobile App on any device User owns or controls, as permitted by Apple’s or Google Play’s terms of service.

     

    6.6. Intellectual Property.  User agrees that the Services contain proprietary information and material that is owned by Company, its licensors, or the Third-Party Vendors, and are protected by applicable intellectual property and other laws, including copyright. User may not use such proprietary information or materials except for use of the Services in compliance with these Terms and Conditions. The “Drayup” name and other Company trademarks, service marks, graphics, and logos used in connection with Services are trademarks or registered trademarks of Company. User is granted no right or license with respect to any of the aforesaid trademarks.  User may not decompile, reverse engineer, disassemble, attempt to extract the source code of, decrypt, or modify the Platform, and User should not try to translate the Platform into other languages, or make derivative versions. User shall not engage in “spidering,” “screen scraping,” “database scraping,” harvesting of information, or any other automatic means of accessing, logging-in or registering on this website, or obtaining or accessing any information from or through the Platform.

     

    6.7. Termination of Services. If User fails, or Company suspects that User has failed, to comply with any of the provisions of these Terms and Conditions, Company may, without notice to User: (i) deactivate User’s Account; and/or (ii) preclude User’s access to the Services. Company further reserves the right to modify, suspend, or discontinue the Services at any time with or without notice to User, and Company will not be liable to User or to any third party should it exercise such rights.  User is responsible for all fees and/or expenses due for the Services.

     

    6.8. Disclaimer of Warranties; Limitations on Liability

    Company does not guarantee, represent, or warrant that User’s use of the Platform and/or Services will be uninterrupted or error-free, and client agrees that, from time to time, Company may remove the Platform and/or Services for indefinite periods of time or otherwise limit or disable User’s access to the Platform and/or Services.

    User’s use of, or inability to use, the Platform and/or Services is at its sole risk. The Platform and/or Services are provided “as is,” “with all faults,” and “as available” for User’s use, without warranties of any kind, either express or implied, including all implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement.

    In no case shall Company, its directors, officers, employees, affiliates, agents, contractors, or licensors be liable for any direct, indirect, incidental, punitive, special, or consequential damages relating to or arising from User’s use of the Platform and/or Services, including, but not limited to, any errors or omissions, or any loss or damage of any kind incurred as a result of the use of the Platform and/or Services, transmitted, or otherwise made available via the Platform and/or Services, even if advised of their possibility. Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, Company’s liability shall be limited to the extent such limitation is permitted by law.

    User’s submission of information in connection with the Platform and/or Services is its sole risk, and User hereby releases Company from any and all liability to client for any loss or liability relating to such information.

    Company does not represent or guarantee that the Platform and/or Services will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and client hereby releases Company from any liability relating thereto.

    To the extent Company is liable to User for any damages related to the Services, User agrees that Company’s liability for such damages shall be limited to: (i) fifty dollars ($50.00) per piece of damaged equipment (trucks, trailers, and other vehicles); and (ii) $50 per Yard Services request handled by Company or a Third-Party Vendor. User waives the right to pursue Company for any damages not reported to Company within three (3) days from the date Services were provided by Company.

     

6.9. Waiver and Indemnity.  User agrees, to the extent permitted by law, to indemnify and hold Company, its directors, officers, employees, affiliates, agents, contractors, and licensors harmless with respect to any claims arising out of User’s breach of these Terms and Conditions, User’s use of the Platform and/or Services, or any action taken by Company as a result of its finding or decision that a violation of these Terms and Conditions has occurred. User shall not sue or recover any damages from Company, its directors, officers, employees, affiliates, agents, contractors, and licensors as a result of its decision to remove or refuse to process any information, to terminate User’s access to the Platform and/or Services, or to take any other action during the investigation of a suspected violation or as a result of Company’s conclusion that a violation of these Terms and Conditions has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by these Terms and Conditions.  In addition, User agrees, to the extent permitted by law, to indemnify and hold Company, its directors, officers, employees, affiliates, agents, contractors, harmless with respect to any claims asserting that Company is the direct or joint employer of User or any of User’s workers.

 

6.10. Doing Business Electronically. User and Company consent to receive communications from each other in an electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfy any legal requirement that such communications would satisfy if it were to be in a hardcopy writing, provided the sender of the electronic communication can be authenticated using commercially reasonable means.

 

6.11. Miscellaneous Provisions.  These Terms and Conditions constitute the entire agreement between User and Company governing User’s use of the Services, and it supersedes any prior agreements with respect to the same subject matter between User and Company. User may also be subject to additional terms and conditions that may apply when Third-Party Services are utilized. If any part of these Terms and Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intent of the parties, and the remaining portions shall remain in full force and effect. Company’s failure to enforce any right or provision in these Terms and Conditions will not constitute a waiver of such or any other provision. Company will not be responsible for failures to fulfill any of its obligations under these Terms and Conditions that result from causes beyond Company’s control. User agrees to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to User’s use of the Platform and/or Services, including the provision of transportation services pursuant thereto.  All monetary references are made in U.S. dollars ($).

 

6.12. Arbitration.  EXCEPT FOR COLLECTION ACTIONS FROM COMPANY SEEKING COLLECTION OF FEES FROM USER OR ENFORCEMENT OF THE YARD STORAGE CONTRACT, IF ANY PARTY REQUESTS, THE OTHER PARTY AGREES TO ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT.  IF ANY PARTY SEEKS TO HAVE A DISPUTE SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO THE OTHER PARTY, BY CERTIFIED MAIL, A WRITTEN NOTICE OF INTENT TO ARBITRATE.  IF THE PARTIES DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICE IS RECEIVED, ANY PARTY MAY COMMENCE AN ARBITRATION PROCEEDING WITH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR NATIONAL ARBITRATION FORUM (“NAF”).  COMPANY WILL PROMPTLY REIMBURSE YOU FOR ANY ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, COMPANY WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES.  IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY YOU OR THE RELIEF SOUGHT BY YOU IS IMPROPER OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE 11(B), THEN COMPANY WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES.  THE PARTIES AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY.  EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  FURTHER, THE PARTIES AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.

 

6.13. Right to Opt Out of Arbitration.  YOU MAY OPT OUT OF THE ARBITRATION PROVISION ABOVE.  TO OPT OUT OF THE ARBITRATION CLAUSE, YOU MUST SEND COMPANY A NOTICE THAT YOU DO NOT WANT THE CLAUSE TO APPLY TO THIS AGREEMENT.  FOR ANY OPT OUT TO BE EFFECTIVE, YOU MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY REGISTERED MAIL, WITHIN 14 DAYS AFTER THE DATE OF THIS AGREEMENT:

Drayup – ARBITRATION OPT OUT,

36 W 44. Street, STE 1212

New York NY 10036

Attn: Legal

support@drayup.com

 

6.14. IN THE EVENT ARBITRATION IS NOT APPLICABLE AND IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT ANY DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.  YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

If you have any questions regarding these Terms and Conditions or any terms referenced herein, please contact Company at support@drayup.com

Drayup Inc.

   36 W 44. Street, STE 1212

   New York NY 10036

   Attn: Legal

 

Exhibit A – Yard Storage Contract  
 

  1. Definitions.

    1.1. "Chassis” means a steel frame equipped with wheels for transporting a Container.

     

    1.2. “Containers” means multimodal shipping containers or over-the-road trailers laden with Goods for transportation by water, road, or rail that Depositor tenders to Company for Yard Storage. Company shall not accept and Depositor shall not tender any Goods that qualify has hazardous goods under any applicable laws.

     

    1.3. “Company” means Drayup, Inc. and its subsidiaries, related companies, agents, or representatives.

     

    1.4. “Contract” means these Yard Storage Terms and Conditions of Contract.

     

    1.5. Depositor” means the shipper, consignee, or owner of Goods or such shipper’s, consignee’s, or owner’s contractors or agents that own, lease, operate, or possess Containers, including motor carriers, drayage companies, forwarders, and brokers.

     

    1.6. "Equipment” means any equipment to be tendered for Yard Storage by Depositor including but not limited to personal vehicles, recreational vehicles, boats, trucks, tractors, and/or Containers.

     

    1.7. “Goods” means any non-hazardous personal property, including Equipment and any property laden in Equipment.

     

    1.8. “Spotting Services” means services related to moving Equipment within the Yard including loading and/or unloading Containers from a Chassis for purposes of storing Equipment within the Yard.

     

    1.9. “Yard Storage” means the outdoor storage of Equipment or Goods by Company, including by Depositor’s dropping of sealed Containers in the Yard, with or without tractors, on Chassis or not, empty or loaded, secured or unsecured, for the benefit of Depositor or the Containers and, if elected, includes Spotting Services.

     

  2. Acceptance.

    2.1. Depositor understands and agrees that it has had a fair opportunity to accept this Contract, and has accepted this Contract, by clicking to indicate such acceptance on Company’s website when booking Yard Storage, which booking will generate an e-mail that contains a booking number and QR code. In the absence of such express online acceptance, Depositor understands and agrees that the act of tendering Goods to Company for Yard Storage shall constitute acceptance of this Contract.

     

    2.2. Depositor understands and agrees that it has had a fair opportunity to inspect the yard at which Depositor has tendered Goods for Yard Storage (the “Yard”), the address of which is in the confirming e-mail that Company’s website generated after Depositor’s booking of the Yard Storage.

     

    2.3. Depositor understands and agrees that Company will only accept laden Containers that are sealed for Yard Storage, with no knowledge of the Equipment’s contents. Depositor understands and agrees that Company’s acceptance of non-containerized Goods for Yard Storage is conditioned on Depositor’s agreement to not put anything of value within the disclosed Goods that Depositor tenders for Yard Storage, such as personal property or cash within the trunk of a car. Depositor understands and agrees that Company shall have no liability for the loss of or damage anything of value within non-containerized Goods that Depositor tenders for Yard Storage.

     

    2.4. Depositor understands and agrees that for reasons of safety and security, Company uses security cameras at the Yard to monitor in-gating, Yard Storage, and out-gating. It is a condition to Company’s acceptance of Goods for Yard Storage that Depositor consents to Company’s use of security cameras.

     

    2.5. Depositor understands and agrees that all Equipment is/are in good repair and operating condition and each meets all applicable federal, state, local, and foreign requirements, that each is in all respects fit and serviceable for the use intended under this Contract.

     

    2.6. Depositor understands and agrees that if Company provides Spotting Services as part of the Yard Storage, Depositors represents and warrants to furnish fully licensed, inspected and functional equipment and that Company is not responsible for the inspection of Equipment and/or any resulting damage for any load shift during transportation caused by improper or insufficient loading, blocking, or bracing.

     

    2.7. Depositor understands and agrees that no repairs or maintenance of Equipment will be conducted at the Yard which includes but is not limited to tire repairs or replacement, no minor or major repairs, no oil changes, and no refueling.  Any person or company doing work on Equipment whether Depositor or a third-party on Depositor’s behalf will be asked to leave immediately and, in Company’s sole discretion, subject Depositor to immediate termination of this Agreement.  Depositor shall be responsible for any and all damages related to unauthorized activities including but not limited to environmental remediation, fines, injuries, and/or clean up expenses and Company may charge all such damages to Depositor’s Payment Method.

     

  3. Shipping.

Depositor shall not designate Company to be the consignee for any Goods under any bill of lading, waybill, air waybill, or any other transportation contract, receipt, or delivery document. If, in in breach of this Contract, Goods arrive at Company and it is the named consignee, then Depositor agrees to notify the carrier in writing prior to such shipment, with copy of such notice to Company, that Company is only a storage yard that has no beneficial title or interest in such Goods, and Depositor further agrees to indemnify and defend Company from and against any claims for unpaid transportation charges, including undercharges, demurrage, detention, or any other charges that arise out of or are in any way connected to the Goods, including reasonable attorneys’ fees Depositor pays or incurs. Depositor further agrees that if it fails to notify the carrier as the preceding sentence requires, then Company shall have the right to refuse such Goods and it shall not be liable for any loss, injury, or damage that arises out of or is in any way connected to such Equipment, to Goods laden in the Equipment, or to Company’s refusal to accept such Goods for Yard Storage.

 

  1. Charges, Reservations, Prepayment, and Automatic Payment for Overstays.

    4.1. All charges for Yard Storage are per 24-hour period, with any fraction of a 24-hour period, such as one hour, to be subject to the charges for the entire 24-hour period (each, a “Storage Day”). Yard Storage begins at the time and date of Depositor’s in-gating of Goods into the Yard.

     

    4.2. For reserved Yard Storage, Depositor shall make a reservation on Company’s website and prepay for the number of Storage Days Depositor requests. Depositor must prepay for Yard Storage by credit card or ACH transfer (“Depositor’s Payment Method”). Subject to space availability, Company may accept unreserved Yard Storage on a drive-up basis by creating a user profile, which will include storage of Depositor’s Payment Method, which Company shall charge for the prepayment for the number of Storage Days Depositor requests.

     

    4.3. If any Goods remain at the Yard after the end of the prepaid period of Yard Storage, then Company shall immediately charge Depositor’s Payment Method for another Storage Day, and then daily for each subsequent Storage Day.

     

    4.4. If Depositor’s Payment Method does not work to make any payment due, then Company shall immediately e-mail Depositor, which shall have 24 hours to pay any balance due using an alternative payment method. Depositor’s failure to pay using an alternative method or to reactivate Depositor’s Payment Method will trigger Company’s lien rights and remedies under this Contract and at law.

     

  2. Transfer, Termination of Storage, Removal Of Goods

    5.1. Upon 7 days’ written notice to Depositor, Company reserves the right to move, at its expense, any Goods in the Yard to any other of Company’s yards.

     

    5.2. At any time and for any reason, and upon giving 7 days’ written notice to Depositor and to any other person Company knows to claim an interest in Goods, Company may require the removal of the Goods and the immediate payment of all amounts then due. If Goods were to remain in Yard Storage after the end of the above notice period, then Company may sell the Goods according to applicable law.

     

    5.3. If Company in good faith believes that Goods are about to deteriorate or decline in value to less than the amount of Company’s lien before the end of the seven-day notice period of Section 5.2, then Company may specify in the notification any reasonable shorter time for removal of the Goods and, if the Goods are not removed, Company may sell the Goods according to applicable law.

     

    5.4. If as a result of a quality or condition of Goods in a Container of which Company had no notice at the time of deposit that such Goods are a hazard to other Goods, to the Yard, to other property, or to persons, then Company may sell such Goods according to applicable law. If Company after a reasonable effort is unable to sell such Goods, then it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale, or return of the Goods, Company may remove them from the Yard and shall incur no liability by reason of such removal.

     

  3. Conclusion of Yard Storage

Using Company’s website, Depositor must arrange the time and date of its pick-up of Goods to end the Yard Storage. If access to the Yard or any Goods is impacted by acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots or civil commotions, or any other reason beyond Company’s reasonable control, or because of loss of or damage to Goods for which Company is not liable, or because of any other legal excuse, justification or immunity, then Depositor understands and agrees that Company shall not be liable for such lack of access, and Goods remaining in Yard Storage will continue to be subject to regular storage charges.  At time of pick-up of Goods, Depositor must conduct an inspection of the Equipment prior to departing the Yard and notify Company of any alleged damage prior to departing the Yard.  Notwithstanding any other part of this Contract, Company is not responsible for any damage to Equipment if Depositor fails to notify Company of damage prior to removing the Equipment from the Yard.

 

  1. Liability and Limitation of Damages; Opportunity to Avoid Limitation

    7.1. Depositor understands and agrees that Company shall not be liable for any loss of or damage to Goods, however caused, unless such loss or damage was because of Company’s failure to exercise care in regard to the Goods that a reasonably careful person would exercise under similar circumstances. Company shall not be liable for damages that could not have been avoided by the exercise of that care.

     

    7.2. Depositor understands and agrees that Company does not insure Goods against loss or damage.

     

    7.3. Depositor understands and agrees that Company’s liability for loss of or damage to Goods shall be limited to $50 per Equipment or, for non-containerized Goods, to $50 per item. Depositor further understands and agrees that at the time of acceptance of this Contract under Section 2, Depositor may, upon its written request, increase Company’s level of liability, in which event Company shall charge increased rates based on Depositor’s increased valuation of Goods.

     

    7.4. If loss of or damage to Goods occurs as to which Company is not liable, then Depositor shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental cleanup and site remediation resulting from the loss of or damage to such Goods and/or maintenance or repair of Equipment. Depositor shall be liable for its acts or omissions that cause any loss of or damage to any other depositor’s Goods or Equipment at the Yard or to Company’s real or personal property there. Depositor shall indemnify and defend Company from and against any loss, cost, and expense, including reasonable attorneys’ fees, which Company pays or incurs as a result of any loss of or damage to any other depositor’s Goods or for any loss of or damage to Company’s real or personal property at the Yard. Any amounts that Depositor owes under this section shall be subject to Company’s liens in Section 14.

     

  2. Notice Of Claim and Time-Bar

    8.1. Except as provided for in Section 6, Depositor or any other person must provide Company with written notice within a reasonable time, and in no event any later than the earlier of (i) 30 days after the date of Depositor’s removal of Goods from the Yard or (ii) 30 days after Company notifies Depositor of a loss of or damage to Goods. Depositor understands and agrees that the failure to provide a timely notice of claim under this Section shall extinguish any liability of Company.

     

    8.2. In any event, Company shall be discharged from all liability to Depositor or any other person as to any Yard Storage that Company has provided unless Depositor or such other person files an action in the mandatory venue under section 15 by no later than the earlier of (i) six months after the date of Depositor’s removal of a Goods from the Yard or (ii) six months after Company notifies Depositor of a loss of or damage to Goods.

     

  3. No Liability for Consequential Damages

In no event shall Company be liable for any loss of profit or for any special, indirect, or consequential damages, notwithstanding Company’s notice of the possibility of any of the above types of damages.

 

  1. Mysterious Disappearance

Subject to Section 8, Company shall be liable for an unexplained or mysterious disappearance of Goods only if Depositor establishes that such loss occurred because of Company’s failure to exercise reasonable care. Any presumption of conversion imposed by law shall not apply to such loss and a claim by Depositor of conversion must be established by affirmative evidence that Company converted the Goods to Company’s own use

 

  1. Right to Store Goods

Depositor states that it is lawfully possessed of the Goods and has the right and authority to store them with Company. Depositor agrees to indemnify and defend Company from and against any loss, cost, and expense, including reasonable attorneys’ fees, which Company pays or incurs as a result of any dispute or litigation, whether instituted by Company or others, as to Depositor’s right to possess and store the Goods. Such amounts shall be subject to Company’s liens in Section 14.

 

  1. Accurate Information

Depositor will provide information to Company concerning Goods that is accurate, complete, and sufficient to allow Company to comply with all laws and regulations concerning the storage of Goods. Depositor shall indemnify and defend Company from and against any loss, cost, penalty, and expense, including reasonable attorneys’ fees, which Company pays or incurs as a result of Depositor’s failing to fully discharge that obligation.

 

  1. Severability, Non-Waiver, and Entire Agreement

    13.1. If any portion of this Contract shall for any reason be held to be invalid or unenforceable, then the remainder of this Contract shall be unaffected by such holding and shall remain in full force and effect.

     

    13.2. Company’s waiver of any right under this Contract on one occasion shall not constitute a waiver of such right on any subsequent occasion.

     

    13.3. This Contract is the parties’ final expression and entire agreement arising out of or in any way relating to the Yard Storage. This Contract states the parties’ entire understanding and it supersedes any contemporaneous or prior oral or written understandings and agreements that arise out of or are in any way related to the Yard Storage or Goods. This Contract shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each party.

     

  2. General and Specific Liens

Company shall have a general and a specific lien for all lawful charges for storage and preservation of any Goods at the Yard, and also for money Company has advanced, interest, insurance, transportation, labor, and other charges and expenses in relation to such Goods, and for the balance on any other accounts that may be due. Company shall further have a general lien for all such charges, advances, and expenses as to any other Goods in Yard Storage, whether at the Yard or at any other yard. To protect its liens, Company may require advance payment of all charges prior to release of Goods. Company may exercise its lien rights under this Contract and any applicable law. Depositor agrees that Company’s liens shall survive release of any Goods.

 

  1. Mandatory Law, Venue, and Jurisdiction

All claims or disputes arising out of or in any way related to this agreement or any Yard Storage or Goods shall be determined under the laws of the State of New York, without regard to its conflict of laws rules. Without prejudice to a party’s right to remove an action to federal court, the exclusive and mandatory venue for any such claims or disputes shall be the federal or state courts in the Borough of Manhattan, New York, to the exclusion of all other courts. The parties agree to irrevocably submit to the personal jurisdiction of the above courts and to waive any jurisdictional, venue, or inconvenient forum objections to those courts.

0153337.0768511   4859-8349-3988v7