ShipServ General Terms & Conditions (2002 Version)
NOTE: If you are purchasing any ShipServ product and do not have a copy of these ShipServ General Terms & Conditions, you should print this off.
1. Services, Licence & Applicability
1. These General Terms & Conditions, along with any attachments or other documents incorporated by reference, are collectively referred to as “this Agreement”.
2. ShipServ Ltd. (“ShipServ”) will provide the User (“you”) with such of its products, software, applications and services as you have accepted in writing or through your conduct. ShipServ grants you a non-exclusive worldwide licence to use them to support your sale or purchase of maritime goods or services across TradeNet, ShipServ’s global trading network. These licensed products, software, applications and services are collectively referred to as “the Services” in this Agreement. Such Services may be subject to additional licences or terms and conditions which shall form part of this Agreement, but to the extent that there is any inconsistency such licences or terms and conditions will prevail over these General Terms & Conditions.
3. This Agreement may not be assigned or transferred without the prior express written consent of ShipServ.
2. ShipServ TradeNet Membership Rules
1. ShipServ and you will be bound by the ShipServ TradeNet Membership Rules (a copy of which can be found at www.shipserv.com).
2. ShipServ may exercise its powers under the ShipServ TradeNet Membership Rules but, in doing so, will be protected by these General Terms & Conditions.
4. Mutual Responsibilities
ShipServ and you will seek:
1. not to put into the other party’s system or program any material which contains any viruses or other similar computer programming routines.
2. to keep the other party informed of any changes that may affect the software or services of the other party, including changes of address and updates to software used by the other party.
5. Your Responsibilities
1. You will not in any way tamper with, reverse engineer or otherwise copy any ShipServ software or its functionality. You will also not, lease, lend, distribute, sell, sublicense, or otherwise transfer any ShipServ software to any party.
2. You will not commence a transaction on ShipServ TradeNet and then complete it outside of TradeNet, thus circumventing the payment of any ShipServ fees. Where you do so, you will be liable to pay ShipServ the applicable fee for such transaction.
3. You use the Services entirely at your own risk. Without limiting this general responsibility, ShipServ does not monitor or make any enquiries about any of the items listed below, since you are solely responsible for:
1. the information that you use or generate in the use of the Services (“Information”).
2. verifying the quality and reliability of any other User with whom you deal and the quality and reliability, accuracy of any information, goods or service provided by such other Users.
3. ensuring that another User, with whom you deal or wish to deal, participates in any transaction or otherwise performs as required
4. ensuring that the Information, your use of the Services and the trade or goods associated with such Information or Services does not breach any national or international laws or regulations or infringe the rights of any other User or third party
5. ShipServ is not a party to or otherwise a participant in User-to-User transactions and, in the event of any dispute (whether civil or criminal) between you and another User or any other third party (including any government authority), you will defend, protect and indemnify ShipServ, its agents, contractors, officers, directors and employees from any and all claims, loss, damages and fines arising out of or in any way connected with such dispute.
6. ShipServ Liabilities
1. ShipServ accepts no liability for any direct, indirect or consequential loss or damage (including punitive damages) arising out of (i) any of ShipServ’s acts or omissions, whether or not arising out its provision of all or any part of the Services or (ii) your failure to carry out any of your obligations under this Agreement.
2. If, despite clause 6a, ShipServ is found liable to you for any loss or damage, its liability will be limited to the lowest of (i) the sum claimed by you, (ii) US$10,000 or (iii) any sum calculated under Clause 6c.
3. Where one incident gives rise to claims by more than one User, ShipServ’s liability to all Users arising out of such incident will be limited to US$50,000, which will be shared between them pro rata. In calculating such prorating, the amount considered in respect of your claim will be the lesser of the sum claimed by you or $10,000.
7. Termination and Failure to Perform
1. This Agreement will continue until cancelled at the end of any Billing Period (in respect of any term licences) by either party giving notice not less than 30 days before the end of such Billing Period. If no Billing Period has been agreed, this Agreement may be cancelled at any time by either party giving not less than 30 days notice.
2. If any amount due from you to ShipServ has not been paid on time in accordance any credit period set out in an invoice, you may be subject to a service charge of 1.5% per month on such unpaid amounts, but this will not relieve you of your obligation to pay amounts due.
3. If ShipServ reasonably believes in its sole opinion that any of your Information may (i) create liability for ShipServ or any other User, or (ii) damage the hardware or software of ShipServ or any other User, or (iii) otherwise cause harm to ShipServ or any other User, ShipServ may notify you of such belief and immediately remove such Information from its systems or otherwise limit your use of the Services.
4. Despite any right elsewhere in this Agreement, if one party is in breach of this Agreement, he may be given by the other party 30 days notice to rectify such breach. If at the end of the notice, the breach has not been rectified, the party giving notice may cancel this Agreement with immediate effect and terminate the Services.
5. Upon the termination of this Agreement for any reason:
1. both parties will honour all outstanding obligations under this Agreement.
2. all licenses granted by ShipServ will terminate immediately and you will return or destroy any copies of any software licensed to you.
8. Dispute Resolution and Applicable Law
1. This Agreement will be governed by English law.
2. Any dispute between you and ShipServ will be settled by binding arbitration conducted in London by the London Maritime Arbitrators Association (“LMAA”) using the LMAA’s terms current at the time the arbitration proceedings were commenced. The arbitration will be conducted by one independent arbitrator appointed by the President of the LMAA. The decision of the arbitrator will be binding
3. If the amount in dispute is less than US$50,000 (or such other sum as the parties may agree), such dispute will be resolved in accordance with the Small Claims Procedure of the LMAA.
4. The costs (including without limitation reasonable legal fees) of the prevailing party will be borne by the losing party.
9. Other General Provisions
1. Headings and notes in this Agreement are for references only.
2. Any notice under this Agreement may be sent by letter, fax or e-mail.
3. A party’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between you and ShipServ nor trade practice will act to modify any provision of this Agreement.
4. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions of this Agreement will remain in full force and effect.