General Terms & Conditions (2007 Version)
1. Services, Licence & Applicability
a. These General Terms & Conditions, along with any attachments or other documents incorporated by reference, are collectively referred to as “this Agreement”.
b. ShipServ Ltd. (“ShipServ”) will provide You with such of its products, software, applications and consulting and other services (such products, software, applications and services being collectively referred to as “the ShipServ Services”) as have been mutually agreed. ShipServ grants You a non-exclusive worldwide licence to use them to support Your sale or purchase of maritime goods or services. These licensed products, software, applications and services which ShipServ agrees to provide You with are collectively referred to as “Your ShipServ Services” in this Agreement.
c. The provision of Your ShipServ Services may be subject to Your acquiring additional licences or terms and conditions (for example, but without limitation, for a ShipServ website or as part of a specific piece of software) 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.
d. ShipServ warrants that Your use of Your ShipServ Services in accordance with this Agreement will not infringe any third party’s copyright or other intellectual property or related right. You must contact ShipServ immediately if anyone makes or threatens to make a claim against You relating to Your use of Your ShipServ Services and You will comply with any reasonable request from ShipServ in relation to any such claim.
e. All intellectual property, including, but not limited to patents, trade secrets, copyrights and trademarks, that is generated, developed or created by ShipServ for use in or as part of the ShipServ Services shall be the property of ShipServ. You shall do all that is necessary to assist ShipServ in the protection of such intellectual property. The terms of this Clause 1e. shall survive the termination of this Agreement.
f. Either party may assign this Agreement and its rights or obligations hereunder without the other party’s consent to any of its existing or future subsidiaries or affiliated companies. Otherwise this Agreement may not be assigned or transferred without the prior consent of the other party, which consent shall not be unreasonably withheld.
2. ShipServ TradeNet Membership Rules
a. ShipServ and You will be bound by the current version from time to time of the ShipServ TradeNet Membership Rules.
b. ShipServ may exercise its powers under the ShipServ TradeNet Membership Rules but, in doing so, its liability is governed by these General Terms & Conditions.
3. Commercial Confidentiality
a. “Your Information”, being any business or technical information that You provide in connection with Your use of Your ShipServ Services, is Your property.
b. You grant ShipServ a non-exclusive, perpetual, irrevocable, royalty free worldwide licence to use Your Information as set out in this Commercial Confidentiality Policy.
c. “Confidential Information” means any business or technical information (including any software) provided by You or ShipServ to the other party (‘the receiving party’) for the purposes of Your use of Your ShipServ Services, whether or not stated to be confidential.
d. Confidential Information shall not be, or shall cease to be, confidential if it is, or through no act or failure to act on the part of the receiving party becomes, generally known or publicly available.
e. Neither You nor ShipServ shall disclose the other’s Confidential Information to other users of any of the ShipServ Services (“Users”) or third parties, or otherwise use any of such Confidential Information, except to the extent necessary to provide Your ShipServ Services, or as permitted by Clause 3f, but this shall not preclude ShipServ providing reporting tools enabling one User to analyse information regarding that User’s business with another User.
f. ShipServ may disclose:
1. to other Users Your name, address, email address or other contact information (including that of any individual provided for the purposes of Your use of Your ShipServ Services);
2. Your name, logo and hypertext links to Your website on its website and similar marketing materials, but ShipServ shall not use them in any advertising without Your prior permission;
3. any information where ShipServ in good faith believes it to be necessary to do so for the proper operation of the ShipServ Services;
4. any information where ShipServ is legally obliged to do so by any government authority or regulatory body or where it is necessary for ShipServ to do so in order to identify, contact or bring legal action against someone who may be violating this Agreement or may (either intentionally or unintentionally) be causing injury to or interference with the rights or property of ShipServ, other Users or any third party;
5. any other information from or relating to Your use of Your ShipServ Services, provided that the following cannot be identified from such information:
(i) the prices of any goods or services purchased or sold by an individual User
(ii) the quantities of any goods purchased or sold by an individual User
(iii) the buyer of any particular goods or services purchased through the use of the ShipServ Services.
4. Mutual Responsibilities
ShipServ and You will seek:
a. not to put into the other party’s system or program any material which contains any viruses or other similar computer programming routines;
b. 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
a. You will not in any way tamper with, reverse engineer or otherwise copy or adapt any ShipServ software or its functionality, except and to the extent this is permitted by law.
b. You will also not, lease, lend, distribute, sell, sublicense, or otherwise transfer any ShipServ software to any party.
c. You are responsible for the provision of and payment for suitable equipment, software (excluding software provided by ShipServ, but including, without limitation, any software to be provided by a ShipServ Software Partner) and telecommunications services necessary to enable You to use Your ShipServ Services. ShipServ accepts no responsibility for any delay or inability to use any part of Your ShipServ Services due to any fault (1) in such equipment, software or services or (2) in, or Your means of access to, the Internet.
d. 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.
e. You are solely responsible for:
1. the quality, reliability and accuracy of Your Information.
2. verifying (i) the quality and reliability of any other User with whom You deal and (ii) the quality, reliability and 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 Your Information, Your use of Your ShipServ Services and the trade or goods associated with such Information or Your ShipServ Services does not breach any national or international laws or regulations or infringe the rights of any other User or third party.
5. ensuring that Your relationship with any other User is governed by any terms and conditions that You wish to impose or agree.
f. ShipServ is not a party to or otherwise a participant in User-to-User transactions and, in the event of any dispute or proceedings (whether civil or criminal) regarding such transactions 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, except to the extent that ShipServ is in breach of this Agreement.
6. ShipServ Liabilities
a. ShipServ cannot guarantee that Your ShipServ Services will never be faulty or that they will be available at all times but ShipServ will endeavour to correct reported faults as soon as it reasonably can. If a fault occurs You should report the fault to ShipServ Customer Service, whose contact details can be found on its website. ShipServ may need to vary technical specification, or temporarily suspend the whole or any part, of Your ShipServ Services from time to time but will give You as much notice as is reasonably practicable in the circumstances.
b. Whilst ShipServ will use all reasonable skill and care in the creation and supply of Your ShipServ Services, ShipServ does not give any warranty as to their suitability, accuracy, freedom from fault or fitness for any purpose.
c. Subject to Clause 6e, ShipServ accepts no liability in contract or tort (including liability for negligence) for loss of business revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect, special or consequential loss or damage (including punitive damages).
d(1). Subject to Clause 6e, in any event ShipServ’s liability to You under or in connection with this Agreement will be limited to the lowest of (i) the sum claimed by You, (ii) US$25,000 or (iii) any sum calculated under Clause 6d(2).
d(2). 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$250,000, 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 $25,000.
e. ShipServ does not limit or exclude its liability for death or personal injury caused by its negligence or any other liability to the extent that such a limitation or exclusion is prohibited by law.
f. ShipServ will not be liable if ShipServ cannot perform any of its obligations under this Agreement because of circumstances beyond its reasonable control such as technical failure, severe weather, fire or explosion, civil disorder, war, or military operations, natural or local emergency, anything done by government or other competent authority or industrial disputes of any kind.
g. Except as expressly permitted in this Agreement, all warranties, conditions or other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
h. Nothing in this Agreement affects the liability of either party for fraudulent misrepresentation.
7. Termination and Failure to Perform
a. This Agreement will continue indefinitely. It may be cancelled by either party giving notice not less than the Notice Period (which if not specified shall be 30 days) before, or at any time after the end, of the Agreement Period (which if not specified shall be one year from the Agreement Date).
b. 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.
c. 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 of its intention to act, and immediately thereafter remove such Information from its systems or otherwise limit Your use of Your ShipServ Services.
d. Despite any right elsewhere in this Agreement, if one party is in breach of this Agreement, it 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 Your ShipServ Services.
e. This Agreement will terminate immediately if You are made bankrupt, enter into liquidation or any arrangement or composition with Your creditors or if a receiver or administrator or similar official is appointed against any of Your assets or business.
f. Upon the termination of this Agreement for any reason all licences granted by ShipServ will terminate immediately and You will return or destroy any copies of any software licensed to You by ShipServ. Termination shall not affect either party’s accrued rights or liabilities under this Agreement.
8. Dispute Resolution and Applicable Law
a. This Agreement will be governed by English law and subject to the rest of this Clause each party submits to the non-exclusive jurisdiction of the English Courts.
b. The parties shall attempt to settle in good faith any dispute or difference which arises between them out of or in connection with this Agreement, by negotiations and, in the event of failure of such negotiations, by the use of a formal mediation procedure in accordance with London Maritime Arbitrators Association (“LMAA”) Mediation Terms current at the time the of the dispute. Such mediation shall take place at a venue to be agreed by the parties and, failing agreement, in London, UK. Each party shall bear its own costs incurred in the mediation proceedings and one half of the fees and expenses of the mediator.
c(1). If such mediation is unsuccessful, the dispute will be settled by binding arbitration conducted in London in accordance with 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.
c(2). If the amount in dispute is less than US$250,000 (or such other sum as the parties may agree), such dispute will be resolved in accordance with the Small Claims Procedure of the LMAA.
c(3). The costs of any arbitration (including without limitation reasonable legal fees) of the prevailing party will be borne by the losing party.
(All the LMAA terms referred to in this Clause may be found at www.lmaa.org.uk)
9. Other General Provisions
a. Headings and notes in this Agreement are for references only.
b. Any notice under this Agreement may be sent by letter, fax or e-mail.
c. 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.
d. 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.
e(1). Changes or additions to Your ShipServ Services may be accepted by Your using them. Changes to the fees may be accepted by Your paying such fees
e(2). Otherwise any amendments or additions to this Agreement must be mutually agreed and in writing.
10. Changes to these General Terms & Conditions and the TradeNet Membership Rules
a. If ShipServ wishes to make any changes to these General Terms & Conditions and/or The TradeNet Membership Rules, it will notify You of the changes 60 days before such changes are to come into force.
b. If the proposed changes are not acceptable, You may give notice to terminate this Agreement in accordance with Clause 7a. Otherwise this Agreement shall be subject to the new version of these General Terms & Conditions and/or the TradeNet Membership Rules from the date on which the new version comes into force. Any special provisions by way of amendment or addition to the previous version which have been specifically agreed in this Agreement shall, however, continue to apply to the new version.
Version 2007 – Copyright © ShipServ Ltd: 2002-2007. All rights reserved.