PAYMENT TERMS & CONDITIONS
- From the Start Date and for the duration of this Contract the Service Provider shall use its reasonable endeavours to: (i) make the Service available at all times, except during Maintenance; and (ii) make Support available for Users as specified at paragraph 4 of the Service Levels.
- The Service Provider shall be entitled to provide Maintenance. During the provision of Maintenance, the Service may be unavailable. The Service Provider shall use its reasonable endeavours to ensure that, during the provision of Maintenance,the Service will be unavailable for no more than 14 days in any calendar year.
- The Service Provider grants to the Customer a non-exclusive licence for the duration of this Contract to permit the Users to use the Service for the Service Provider’s internal business purposes, subject to the terms of this Contract and provided that the Customer does not: (i) sub-license access to or, the use of the Service; and / or (ii) permit third parties to use (whether directly, or as part of a managed service) the same. The Service Provider warrants that it is authorised to enter into this Contract.
- The Service is commercially available on standard terms and has not been tailored to the Customer’s requirements. Therefore, it is the Customer’s responsibility to make reasonable efforts to understand and implement any working practice changes required to make successful use of the Service. The Customer must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of the Product or any other aspect of the Service.
- The Service Provider makes no representations, warranties or guarantees, whether express or implied, that the Service is accurate, complete or up-to-date. The Customer further acknowledges that the Service is not free of bugs and errors.
- Professional services (including consultancy, software development, configuration, and training) are outside the scope of this Contract. Customer acknowledges that the Service provides an estimate of the maintenance requirements for vessels in its fleet based on Customer’s own inputs regarding the voyages undertaken by such vessels and that the outputs of the Service are not a substitute for a visual inspection of vessels’ condition.
The Service Provider and / or its licensors owns all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information anted all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals in the Service (including the Products) and all other materials provided to the Customer pursuant to this Contract.
- The Customer shall pay the Subscription Fee to the Supplier for the Subscription on the Start Date.
All Subscription Fees are:
- payable in pounds sterling; and
- exclusive of value added tax which shall be payable by the Customer at the rate prevailing when the Subscription Fee falls due.
The Customer shall on the Start Date provide to the Payment Platform Provider, valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Service Provider and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
- its credit card details to the Payment Platform Provider, the Customer hereby authorises the Payment Platform Provider to bill such credit card on the Start Date for the Subscription Fees payable in respect of the Term;
- its approved purchase order information to the Supplier, the Supplier shall invoice the Customer on the Start Date for the Subscription Fees payable in respect of the Term, and the Customer shall pay each invoice within 30 days after the date of such invoice.
Term and Termination
- This Contract shall commence on the Start Date and shall continue for the Term unless and until terminated by either party in accordance with this Clause 4.
- Either party shall be entitled to terminate this Contract immediately if the other party: (i) commits any material breach of this Contract and fails to remedy that breach within 30 days of written notice of that breach (the 30 day period only applies where a breach is capable of remedy - if it is incapable of remedy, the Contract may be terminated by written notice immediately); or (ii) being a company, shall pass a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court shall make an order to that effect; or, being a natural person, shall die, or (being a partnership or other unincorporated association) shall be dissolved; or shall cease to carry on its business or substantially the whole of its business; or it becomes or is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or if a liquidator, receiver, administrator, administrative receiver, manager, trustee, or similar officer is appointed over any of its assets.
- On termination of this Contract howsoever caused: (i) the Customer must promptly return to the Service Provider all property belonging to the Service Provider and erase or destroy all copies of such items and provide written certification of the same; (ii) all licences granted pursuant to this Contract shall terminate; (iii) the rights and duties created by Clauses 1.3, 2, 3.5 (including accrued payment obligations of the Customer), 4.4, 5, 6, 8, 9.2, 9.3, 9.7, 9.8, and 9.9 shall survive; and (iv) any rights of either party which arose on or before termination shall be unaffected.
- Each party that receives (“Receiving Party”) non-public business or financial information (“Confidential Information”) from the other (“Disclosing Party”), whether before or after the date of this Contract shall: (i) keep the Confidential Information confidential; (ii) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clause 5.2, or 5.3; and (iii) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract (“Permitted Purpose”).
- The Receiving Party may disclose Confidential Information to its own, or any of its officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this 5 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 5.
- If required by law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
- Neither party excludes or limit its liability for: (i) death or personal injury caused by its negligence; and / or (ii) fraudulent misrepresentation.
- The Service Provider shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and / or similar losses or loss or corruption of data or information, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Contract.
- The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies are for breach of contract (unless the statement was made fraudulently).
- The Service Provider’s Contractual Liability to the Customer shall not exceed three hundred per cent (300%) of the Subscription Fee. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not: (i) unlimited by virtue of Clause 6.1; or (ii) excluded pursuant to Clauses 6.2 and 6.3.
- Except as expressly provided in this Contract, the Service Provider hereby excludes any implied condition or warranty concerning the suitability, quality or fitness for purpose of the Service whether such condition or warranty is implied by statute or common law.
The Service Provider shall be entitled to vary the Service Levels or any other term of the Contract by providing the Customer with not less than 90 days’ prior written notice. In the event that the Customer objects to the Service Provider’s proposed changes, it shall be entitled to terminate this Contract with effect from the date that the changes were due to take effect, by giving to the Service Provider not less than 30 days’ prior written notice, whereupon the Service Provider shall make a pro rated refund to the Customer (on a daily basis from the effective date of termination) of any Subscription Fee that has been prepaid by the Customer for a period of this Contract that has been shortened by the early termination under this Clause 7.
- Any dispute arising under this Contract should first be escalated to the senior management of each party. If the dispute remains unresolved for more than 21 days, the parties will attempt in good faith to resolve the dispute in accordance with an alternative dispute resolution procedure recommended by the Centre for Effective Dispute Resolution. The foregoing provisions of this Clause 8.1 shall not apply to any disputes over recovery of a debt, and shall not restrict either party from seeking injunctive relief in accordance with Clause 8.3.
- This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
- Assignment and Subcontracting. Service Provider may subcontract its obligations under this Contract, but remains responsible to Customer for their performance. Customer may not assign or otherwise transfer this Contract.
- Publicity. Service Provider may publicise the existence of this Contract in its sales and marketing literature.
- Third Party Rights. This Contract does not benefit any person not a party to it.
- Relationship. Neither party is partner or agent of the other and neither party may pledge or commit the other.
- Force Majeure. Neither party shall be in breach of this Contract to the extent that it is prevented from performing its duties and obligations under this Contract (except for payment obligations) directly or indirectly as a result of an event outside its reasonable control.
- Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.
- Severance. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.
- No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.
- Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent to the address of the recipient set out in the Order or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, by fax, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post 48 hours after delivery to the courier or posting (as the case may be), if by fax when confirmation of transmission is received, or if by email immediately.
- No Bribery. The Customer warrants that it: (i) has not committed and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract with the Service Provider; and (ii) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under the Bribery Act 2010.
Additional Terms. These terms and conditions incorporate the following additional terms, which also apply to the Customer’s use of the Service:
- the Acceptable Use Policy https://www.drydoqinsights.com/Home/TermsAndConditions, which sets out the permitted uses and prohibited uses of the Platform. When using the Platform, you must comply with this Acceptable Use Policy.
- the Payment Platform Provider’s terms and conditions at https://www.adyen.com/legal
In this Contract the following words shall have the following meanings:
“Contract” means these terms and conditions including the additional terms at Clause 9.12, the Service Levels (at the Schedule) and the Order. This Contract is formed (and becomes legally binding) when the Customer clicks “I Accept” on completion of the Order.
“Customer” means the ‘customer’ as specified in the Order.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Term” means 12 calendar months from the Start Date.
“Maintenance” has the meaning set out in the Service Levels.
“Order” means the online order form completed by the Customer when registering to access the Service and which incorporates these terms and conditions and constitutes the Contract.
“Payment Platform Provider” means Adyen N.V. a company registered with the Dutch Chamber of Commerce under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands or such other provider as Service Provider may engage to replace them.
“Platform” means https://www.drydoqinsights.com/ or any replacement URL.
“Products” means the DryDoQ Insights tool, including help files and documentation, all new releases, new versions, updates, and modifications thereto.
“Service” means the Products as made available by means of a managed (hosted) service via the Platform in accordance with the Service Levels.
“Service Levels” means the service levels set out in the Schedule to this Contract.
“Service Provider” means International Paint Limited.
“Start Date” means the ‘start date’ specified in the Order.
“Subscription Fee” means the ‘fees’ specified in the Order for the Subscription.
“Support” has the meaning set out in paragraph 2 of the Service Levels.
“Users” means the classification (either named or concurrent) and total number of Customer’s users specified in the Order.
SCHEDULE – SERVICE LEVELS
The Service Provider shall from time to time provide and install:
- minor improvements, updates, enhancements, error corrections, upgrade scripts, and changes to the Service (“Maintenance Releases”); and
- new releases, new versions, updates, and modifications to the Service that do not constitute New Products (“New Version”).
- Nothing in this Contract shall entitle the Customer to any new version of the Products which from time to time is publicly marketed and offered for purchase by the Service Provider in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product (“New Product”).
- The Service Provider shall from time to time provide and install:
- In response to errors in the Service reported to the Service Provider’s helpdesk in accordance with paragraph 4.1 (below), the Service Provider will provide the service levels specified at paragraph 5 (below) provided the errors reported are not Out of Scope.
- “Out of Scope” means errors that result directly or indirectly from the Customer’s: (i) misuse or improper use of the Service; and / or (ii) combination, merger, or use of the Service with any hardware or software outside the Environment.
- The parties may agree that the Service Provider will provide certain support and maintenance services in respect of Out of Scope errors as professional services under a separate contract.
- The “Environment” is the Service Provider’s recommended hardware and software environment for the Customer’s use of the Service, as freely available from the Service Provider on request, and as updated from time to time.
- The Customer is responsible for procuring and maintaining the Environment.
- Maintenance Releases and New Versions may require enhancements to the Environment. The Service Provider will advise the Customer if such enhancements are required. The Customer is responsible for procuring and implementing such enhancements. The parties may agree that the Service Provider will provide assistance with implementation as professional services under a separate contract.
CONTACTING THE SERVICE PROVIDER
- The Customer may contact the Service Provider using the email address email@example.com (or similar).
- The Service Provider will endeavour to assess and resolve any faults or errors with the Service and provide Solutions.
- “Solutions” are fixes or workarounds that are provided remotely and which may (or may not) include the Service Provider providing Maintenance.