1. Scope of Delivery
1.1.1 During the term of this Agreement, Spot Ship grants Customer non-exclusive and limited license to access Spot Ship’s Software products and functionalities for which you have paid the applicable fees solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. Spot Ship’s Software and functionalities include, but are not limited to, Spot Ship’s Digital Broking Assistant (DBA), in line with the Customer’s subscription options, and Spot Ship’s Data. More particularly, Spot Ship will deliver positions and other data relating to vessels.
2. Scope of Licence
2.1
Customer is granted, during the term of this Agreement, a limited in time and scope non-exclusive, revocable, and non-transferable licence for beneficial use of Spot Ship’s Data as specified in Appendix 1. The Data which Spot Ship provides is for the sole use of the Customer and cannot be used in third-party platforms.
Any use of Spot Ship’s Data, including distributing, selling, licensing, or delivering Spot Ship Products directly or indirectly to any client or any third-party not expressly authorised in this Agreement is strictly prohibited.
2.2.1
Customer is only allowed to use Spot Ship Data to incorporate in its internal information system. All Spot Ship data supplied to Customer in the framework of this service is licensed for internal evaluation only. Customer may allow Permitted Users to use the data. Permitted Users, with regards to Data, means any employee, consultant, independent contractor or subcontractor.
2.2.2
Spot Ship’s DBA may only be used by Permitted Users. Permitted Users, with regards to the DBA, means an employee, consultant, independent contractor or subcontractor that has been named in the Licence Agreement.
2.3
Customer does not gain any other or further properties and/or licences related to the Spot Ship Data.
2.4
Customer acknowledges that any unauthorised use of Spot Ship’s Data or DBA will cause irreparable harm and injury to Spot Ship for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Spot Ship shall be entitled to injunctive relief in the event Customer uses the Data or DBA in violation of the limited licence granted hereunder after notice of such violation from Spot Ship.
Customer is granted, during the term of this Agreement, a limited in time and scope non-exclusive, revocable, and non-transferable licence for beneficial use of Spot Ship’s Data as specified in Appendix 1. The Data which Spot Ship provides is for the sole use of the Customer and cannot be used in third-party platforms.
Any use of Spot Ship’s Data, including distributing, selling, licensing, or delivering Spot Ship Products directly or indirectly to any client or any third-party not expressly authorised in this Agreement is strictly prohibited.
2.2.1
Customer is only allowed to use Spot Ship Data to incorporate in its internal information system. All Spot Ship data supplied to Customer in the framework of this service is licensed for internal evaluation only. Customer may allow Permitted Users to use the data. Permitted Users, with regards to Data, means any employee, consultant, independent contractor or subcontractor.
2.2.2
Spot Ship’s DBA may only be used by Permitted Users. Permitted Users, with regards to the DBA, means an employee, consultant, independent contractor or subcontractor that has been named in the Licence Agreement.
2.3
Customer does not gain any other or further properties and/or licences related to the Spot Ship Data.
2.4
Customer acknowledges that any unauthorised use of Spot Ship’s Data or DBA will cause irreparable harm and injury to Spot Ship for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Spot Ship shall be entitled to injunctive relief in the event Customer uses the Data or DBA in violation of the limited licence granted hereunder after notice of such violation from Spot Ship.
3. Intellectual Property
3.1.1
Customer acknowledges that, as between Spot Ship and Customer, the Spot Ship Data and its sequence, structure and organisation are proprietary to Spot Ship and that Spot Ship (and its applicable licensors) retain exclusive ownership thereof and of all intellectual property rights therein.
Customer shall reasonably cooperate with any reasonable measures requested by Spot Ship to protect Spot Ship’s intellectual property rights in any of the Spot Ship Data.
3.1.2
Customer acknowledges that, as between Spot Ship and Customer, Spot Ship’s DBA and its functionality, sequence, structure and organisation are proprietary to Spot Ship and that Spot Ship (and its applicable licensors) retain exclusive ownership thereof and of all intellectual property rights therein.
Customer shall reasonably cooperate with any reasonable measures requested by Spot Ship to protect Spot Ship’s intellectual property rights in regards to the Spot Ship DBA.
​
3.1.3
Customer acknowledges that all information uploaded to the Spot Ship DBA, either directly or via Spot Ship tools, can be utilised by Spot Ship for product enhancements and analytics. All enhancements, automated reading and analytics conducted on that Data by Spot Ship will be property of Spot Ship and Spot Ship will maintain proprietary rights of this Data.
4. Warranties/Limitation of Liability
4.1
Spot Ship hereby represents and warrants that (a) it is duly organised, validly existing and in good standing under the laws of the state, province or country of its formation; (b) it has all requisite power and authority to enter into this Agreement and to carry out the transactions contemplated hereby; © the entering into and performing of this Agreement by it will not result in any breach of, or constitute default under, any agreement to which it is a party, and (d) the signatory of this Agreement has full right, legal power and actual authority to bind Spot Ship to the terms and conditions of this Agreement.
4.2
Spot Ship is only responsible for the receipt of the Spot Ship Data, and use of the Spot Ship DBA, by the Customer. Spot Ship does not assume responsibility for the accuracy of the data sent via AIS and the absence of interruptions of the broadcast of AIS data by the vessels. Spot Ship gathers AIS data from a variety of internal and external sources to produce its data and applies automated as well as manual editing. Although striving for the best results with commitment and diligence, Spot Ship cannot make any representation about the continued availability, accuracy, correctness and quality of AIS data, or its fitness for any particular purpose.
4.3
Spot Ship does not assume responsibility for the accuracy of the data automatically uploaded to Spot Ship DBA via tools. Spot Ship automates data entry using a number of specialist computational tools. Spot Ship cannot make any representations about the continued accuracy, correctness and quality of the data automatically uploaded, or its fitness for any particular purpose.
Spot Ship will endeavour to automatically upload all data as entered notwithstanding the accuracy of the data provided by the Customer.
4.4
The non-fulfilment or improper fulfilment of Spot Ship’s duties caused only by third party vessels having stopped broadcasting AIS data does not constitute a breach of contract, as Customer acknowledges that Spot Ship relies on the broadcast of AIS data by third party vessels. This limitation of liability refers to the content of the data, not to the delivery and grant of usage and licence itself.
4.5
Spot Ship can without legal or financial consequences interrupt the provision of services for short period of time (within the boundaries of what is usual and reasonable in this line of business), in order to carry out repairs and updates, in emergency situations or to meet acts of sovereign power. Spot Ship will reduce such interruptions to the lowest possible degree and will notify Customer reasonably in advance of all planned interruptions, and, to the extent possible, of all emergency interruptions.
5. Indemnity and Liability
5.1
Except to the extent expressly set forth herein, in no event shall Spot Ship be held liable for any damages, expenses, injuries of body and life, whether direct or indirect, resulting from the inaccuracy or incompleteness of the data and services, even if Spot Ship may have had knowledge or been advised of errors in the data or possibility of such damages, except if Spot Ship caused damages by wilful misconduct or gross negligence.
5.2
In the event of liability under this Agreement and strict liability, either party shall be liable for the direct and foreseeable damage only. In no event shall either party be liable for special, indirect, incidental, exemplary consequential or punitive damages including but not limited to lost revenue, profit, business, howsoever caused and regardless of the theory of liability.
5.3
Spot Ship does not make any representation about the Data’s fitness for any particular purpose or technical application, except where confirmed in writing between the parties.
5.4
The aggregate liability of either party which may arise out of or in connection with this Agreement will, in respect of all incidents or series of incidents occurring in any one calendar year, be limited to one time the amount of the payment received by Spot Ship under this Agreement for the calendar year in which the event or events giving rise to the liability occurred. This does not apply in case of wilful misconduct, gross negligence or breach of warranty.
5.5
The Customer shall, at its expense, indemnify, defend, and hold Spot Ship and its affiliates harmless from and against any and all claims, losses, liabilities, damages, actions, proceeding, costs, and expenses arising out of the use of the Data by the Customer other than as permitted under this Agreement.
5.6
The exclusion of liability under Section 6.1 to 6.4 shall also apply to the same extent with respect to management, legal representatives, executives and non-executives, employees and other agents of either party.
5.7
Nothing in this agreement is intended to exclude or limit liability that cannot be excluded or limited by law.
Sections 5.1 to 5.7 shall survive the expiration or termination of this Agreement.
6. Force Majeure
Neither party will be liable for any delay in performing an obligation under this Agreement (other than payment obligation) that is due to causes beyond its reasonable control, such as natural catastrophes, hazards of space, including debris collisions, solar flares or any electro-magnetic interference, governmental acts or omissions (including, without limitation, failure to grant, suspend and/or cancellations of permits or licenses, provided such failure is not the results of any negligence of any Party seeking such permits or license), laws or regulations, labour strikes or difficulties, transportation stoppages or slowdowns, acts of terrorism, weatherm acts or omissions of third party telecommunications suppliers or data collectors, power failures, Internet failures and related network failures, or the inability to procure parts or material, provided that a Party uses reasonable efforts to notify the other Party of the circumstances causing the delay and resumes performance as soon as possible.
7. Spot Ship Data Upon Termination
In the event that notice of termination is given, the Customer will continue to receive and retain the right to use the Spot Ship Data and DBA up to the date that termination becomes effective. Upon termination of this Agreement, Customer is obliged to delete all Spot Ship Data not already integrated into End-User Platform(s) during the terms of this Agreement.
8. Miscellaneous
8.1
This Agreement will be constructed in accordance with and governed by the law of the United Kingdom. The exclusive jurisdiction and location of any action with respect to the subject matter of these terms will be the courts located in London, United Kingdom; the language of jurisdiction being English.
8.2
In the event that sections of this Agreement are unenforceable, the other sections of this Agreement will remain in full force and effect. In place of the ineffective sections, there shall be a section as similar as possible to the invalid section.
8.3
This Agreement, together with its appendices, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in its entirety any and all written oral agreements previously existing between the parties with respect to such subject matter. Changes and additions to this Agreement contract have to be in writing in order to be valid. This also applies to this formality. There are no side-agreements, not in writing or verbal.
8.4
All Confidential Information, whether in written, oral or visual form, disclosed by a party (“Disclosing Party”) to another party (“Receiving Party”) in relation to this Agreement shall remain the property of the Disclosing Party. Such Confidential Information shall not be given or disclosed to any third party without Disclosing Party’s prior written consent and Receiving Party shall only use the Confidential Information for the purposes of this Agreement. Receiving Party shall limit internal dissemination of Confidential Information on a need to
know, basis. The Confidentiality Obligations above do not apply to any information which: has passed into the public domain other than by breach of this clause; is already before the date of receipt from the Disclosing Party in the possession of the Receiving Party without restriction as to disclosure; is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or has been independently developed without access to the Confidential Information. This section shall survive the expiration or termination of this Agreement.