CLARKSONS RESEARCH
Terms and Conditions of Use
Clarksons Research Sea/net - Terms and Conditions of Use
Last updated 10/02/2021 - Clarksons Research Ref: CRSLTCSEA v5
Thank you for your interest in Sea/net which is provided by Clarkson Research Services Limited ("Clarksons Research"). This page states the terms and conditions (“Terms and Conditions”) under which you may use Sea/net. By logging on to or viewing Sea/net you accept and agree to abide by, without limitation or qualification, these Terms and Conditions. If you do not agree to abide by any of the Terms and Conditions as noted here, please do not log on to Sea/net. Clarksons Research may, at any time, decide to modify or revise these Terms and Conditions. Any changes to the Terms and Conditions will be made available via this page at least 7 days in advance of the changes taking effect and you will be deemed to have agreed to the Terms and Conditions as amended by accessing Sea/net following the changes taking effect. We would therefore advise you to periodically visit this page in order to see any such modifications or revisions.
1. The Service, the Content and the contract with the Customer
1.1 These terms and conditions (“Terms and Conditions”) are between Clarksons Research Services Limited, a limited liability company incorporated in England and Wales with company number 1944749 and registered address at Commodity Quay, St Katharine Docks, London, E1W 1BF, UK (“Clarksons Research”) and the entity named on the Order Form (“Customer”).
1.2 The Customer’s use of, and access to, the Website, Service and/or Content is subject to and governed by these Terms and Conditions, the privacy policy published at https://www.clarksons.net/Portal/privacy (“Privacy Policy”), and the cookies policy published at https://www.clarksons.net/Portal/cookies (“Cookies Policy”). To the extent applicable and relevant, for the purpose of the Privacy Policy, Clarksons Research will be the ‘data controller’. These Terms and Conditions, the Order Form, the Privacy Policy and the Cookies Policy form a legally binding agreement between the Customer and Clarksons Research in relation to the Customer’s, and its Authorised Users’, use of and access to the Service and Content (“Agreement”).
1.3 The Service and Content can only be accessed if an Account has been approved and accepted in writing by Clarksons Research in accordance with the process set out in clause 3 below. If Clarksons Research rejects the application for an Account (which it may do in its sole discretion) the Customer and the Authorised Users shall not be entitled to access, or use, the Service or Content.
1.4 The Customer acknowledges that these Terms and Conditions relate to the Service and Content only, and that entering into these Terms and Conditions shall not affect, dissaply or vary in any way any other terms and conditions entered into between the Customer and any entity within the Clarksons Research Group of Companies for other products or services (including the terms and conditions which govern the broking services (including sale, purchase, construction, charter, or post fixture services) in relation to any vessel or offshore installation) and if the Customer wishes to use, access or purchase other products or services offered by any of the entities within the Clarksons Research Group of Companies, it may be required to enter into separate terms and conditions relating to such products and services.
Agreed terms
In consideration of the Subscription Fees and mutual obligations set out below the Parties agree as follows:
2. Interpretation
2.1 The definitions and rules of interpretation in this clause apply in the Agreement.
Account: means a user account required to access and use the Service and/or Content.
Affiliate: means, in respect of Clarksons Research, any person that directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, Clarksons Research; and in respect of any other entity: any person, company, association or other separate legal entity that (i) is a parent or subsidiary undertaking of that party as defined in s1162 of the Companies Act 2006 (as amended); or (ii) directly or indirectly (through one or more intermediaries) Controls, or is Controlled by that entity, or is under common Control with that entity.
AIS Data: means certain ‘Automated Identification System’ data sub-licensed to Clarksons Research by Orbcomm in relation to vessels that have an AIS transmitter and combined with data related to certain ports/countries.
Authorised Users: means those employees of the Customer and its Affiliates (if applicable) who are authorised by Clarksons Research to use the Service and the Content, in accordance with these Terms and Conditions.
Clarksons Research Group of Companies: means Clarksons Research and its Affiliates.
Clarksons Research Parties: means the Clarksons Research Group of Companies and any of its licensors (excluding the Customer) and their respective: Affiliates, employees, agents, directors, officers, members, contractors and/or representatives (and “Clarkson Research Party” shall be construed accordingly).
Sea/net: shall mean the software system produced by Clarksons Research or the Clarksons Research Group of Companies that merges information from various data providers (including without limitation Orbcomm) and used by Clarksons Group of Companies for analytical purposes and vessel tracking purposes.
Content: means all information, materials (including video and written content and other materials), Data, tools, layout, design, functionality (including, without limitation, certain data from Sea/net) and other content made available through the Website or any other means, or provided as part of, the Service (including the AIS Data).
Control:means the possession, direct or indirect, of the power to direct or cause the direction of the management, policies or activities of a person, whether through ownership of securities, by contract or agency or otherwise. The terms “Controls”, “Controlled by” and “under common Control with” shall be interpreted accordingly.
Data: means the data owned or licensed by Clarksons Research which is accessible or made available as part of the Service, including, without limitation, data relating to the location of sea vessels and any AIS Data.
Initial Subscription Term: the initial term of the Agreement as set out in the Order Form.
Insolvency Event: means where: (a) the Customer stops or threatens to stop trading; (b) a receiver, administrator or similar officer is appointed over any of the assets or business of the Customer; (c) the Customer makes an arrangement for the benefit of its creditors; or (d) the Customer goes into liquidation except for the purposes of a genuine amalgamation or reconstruction.
Intellectual Property Rights: means any patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Losses: means claims, demands, actions, awards, losses, liabilities, damages, costs, expenses, disbursements and cost of investigation, litigation, settlement, judgements (including fines, interest, penalties, management time and reasonable legal and other professional costs and expenses).
Orbcomm: means Orbcomm AIS LLC.
Order Form: has the meaning attributed to it in clause 3.6.
Service: means the web-based subscription service made available to subscribers at the Website which provides access to certain content and information made available by Clarksons Research.
Start Date: means the date on which access to the Service will commence as set out in the Order Form.
Subscription Fees: the subscription fees payable by the Customer to Clarksons Research for the User Subscriptions (and additional User Subscriptions (if applicable)) as specified on the relevant Order Form (including where an Order Form is deemed amended by virtue of clause 6.3).
Subscription Term: has the meaning attributed to it in clause 16.1.
Third Party Content: means any service (including any part of the Service) or content made available, or provided through the Service by, or on behalf of, a Third Party Supplier including without limitation the AIS Data.
Third Party Supplier: means any third party supplier of Clarksons Research, such third party suppliers to include, without limitation, entities within the Clarksons Research Group of Companies other than Clarksons Research.
User Subscriptions: the number of user subscriptions authorised by the Customer for access to the Services as set out in an Order Form together with any additional User Subscriptions approved by Clarksons Research pursuant to clause 6.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: means https://www.clarksons.net/seanet, or such other website as Clarksons Research may inform the Customer of from time to time.
Year: means a period of 12 months commencing from either the Start Date of the first Order Form entered into by the parties or an anniversary of such Start Date.
2.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, replacement or re-enactment and includes any subordinate legislation for the time being in force made under it. The words “include”, “includes”, “included” or “including” (or any similar term) wherever they are used will be deemed to be followed by the words “without limitation”.
3. Opening an Account
3.1 In order to obtain an Account, the Customer (or potential customer) should apply to Clarksons Research in one of the following ways:
(a) by completing an online order form which will be located on the Website; or
(b) by requesting further information about the Service from Clarksons’ Research by email, by telephone or by any other means (including by signing a hardcopy order form from Clarksons Research for the Services).
3.2 On receipt, by Clarksons Research, of the relevant communication (referred to in clauses 3.1(a) and 3.1(b)) Clarksons Research will be entitled (in its sole discretion) to provide the Customer (or potential customer) with a draft order form, or email offer or pro-forma invoice which may include, without limitation, the Start Date, the Initial Subscription Term, details of the number of User Subscriptions and any Subscriptions Fees payable.
3.3 If the Customer (or potential customer) wishes to make an offer for access to the Service and/or Website in accordance with the draft order form or email offer or pro-forma invoice, it shall sign such draft order form and return it to Clarksons Research or confirm by email or pay the invoice (“Customer Signed Order Form”).
3.4 By submitting a Customer Signed Order Form to Clarksons Research, the Customer agrees that it will be bound by these Terms and Conditions and the Customer warrants and represents that it has the full right and authority to enter into the Agreement.
3.5 The Customer acknowledges and agrees that each Customer Signed Order Form received by Clarksons Research is an offer from the Customer to purchase access to the Service and/or Website in accordance with these Terms and Conditions and the draft order form (referred to in clause 3.2).
3.6 Notwithstanding anything to the contrary in the Agreement, no contract in respect of the Service and/or Website is formed between Clarksons Research and the Customer (or potential customer), until the following conditions have been satisfied:
(a) acceptance of the Customer Signed Order Form has been communicated in writing to the Customer by Clarksons Research (and such acceptance shall be at Clarksons Research’s sole discretion) or Clarksons Research has made the Content available to the Authorised Users via the Website; and
(b) payment (if applicable) for the relevant Account has been made to Clarksons Research by the Customer in accordance with these Terms and Conditions,
at which time, the order form will be deemed to be an “Order Form”.
3.7 The Customer acknowledges and agrees that it is responsible and liable for all activities conducted through its Account, regardless of who conducts those activities.
4. Authorised Users and License Restrictions
4.1 Subject to the Customer complying, and ensuring each Authorised User complies, with these Terms and Conditions including without limitation, complying with the restrictions set out in this clause 4 of these Terms and Conditions, Clarksons Research hereby grants to the Customer a non-exclusive, non-transferable, revocable, limited right to permit the Authorised Users to view and use the Service and the Content during the Subscription Term solely for information purposes for the Customer's internal use (“Permitted Purpose”).
4.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it allows to access and use the Service and the Content shall not exceed the number of User Subscriptions approved and authorised by Clarksons Research, from time to time;
(b) it will not allow any User Subscription to be used by more than one individual Authorised User;
(c) each Authorised User shall keep a secure password for his use of, and access to, the Service, regularly change their password, and not disclose their password to any third party;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Clarksons Research within 5 days of Clarksons Research’ written request at any time or times;
(e) each Authorised User will comply in full with the terms of the Agreement;
(f) all Authorised Users shall be employees of the Customer and the Customer shall not permit any other third party, to access or view the Service or the Content, without the express prior written consent of Clarksons Research and, then any such access granted shall be limited to the individuals expressly agreed to in writing by Clarksons Research and such users shall be deemed Authorised Users for the purposes of this Agreement; and
(g) it shall be at all times responsible and liable for the acts and omissions of each Authorised User in connection with the Agreement as though they were the acts and omissions of the Customer itself.
4.3 The Customer shall not, and shall ensure that the Authorised Users shall not, access, store, distribute or transmit any Viruses during the course of its use of the Service and Clarksons Research reserves the right, without liability to the Customer or prejudice to its other rights, to disable the Customer’s (and any one or more Authorised Users’) access to the Service and/or Content in the event of a breach of this clause 4.3.
4.4 The Customer shall, and shall ensure that the Authorised Users shall, use the Service and/or Content for the Permitted Purpose and the Customer shall not, and shall ensure the Authorised Users shall not, use the Service and/or Content for any other purpose including, without limitation, in connection with any actual or potential dispute, claim, action , litigation, financial, debt, equity or investment purposes or to conclude any transaction. Except as otherwise set forth in these Terms and Conditions, the Customer and Authorised Users shall have no other rights with respect to the Service and/or Content, including without limitation, any right otherwise to use, distribute, furnish or resell any of the Service and/or Content or any portion or derivative thereof. Customer may not, and shall ensure that the Authorised Users do not, use the Service and/or Content for any illegal purpose or in any manner inconsistent with the Agreement.
4.5 The Customer shall not, and shall ensure that the Authorised Users shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties or except to the extent expressly permitted under these Terms and Conditions:
(a) attempt to copy, modify, duplicate, create derivative works from, reproduce, save, adapt, extract, re-utilise, frame, mirror, publish, republish, redeliver, download, upload, display, transmit, post all or any portion of the Service and/or the Content in any form or media or by any means, or license, sell, rent, lease, transfer, assign (subject to clause 17.8), disclose, or otherwise commercially exploit, or otherwise make the Service and/or Content (or any part thereof) available to any third party. To avoid doubt, the Authorised Users may export Content (excluding any Third Party Content) for the Permitted Purpose if the Website permits this; or
(b) attempt to reverse compile, decompile, recompile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any software made available in connection with part of the Service and/or the Content; or
(c) in any other way create a misimpression or confusion among users with respect to sponsorship or affiliation or exploit in any way material from the AIS Data or any other part of the Content; or
(d) use the Service and/or Content to provide services to third parties; or
(e) attempt to circumvent, bypass or disable any technological protection measures contained in or used to protect the Content, or use any of the Content from which such protection has been illicitly removed, in breach of the Agreement or otherwise; or
(f) use or attempt to use any ‘deep-link’, ‘scraper’, ‘robot’, ‘bot’, ‘spider’, ‘data mining’, ‘computer code’ or any other automated device, program, tool, algorithm, process or methodology or manual process having similar processes or functionality, to access, acquire, copy, or monitor any portion of the Website or the Service or Content found on or accessed through the Website without prior express written consent from Clarksons Research; or
(g) interfere or attempt to interfere with the proper working of the Website or any activities conducted on or through the Website or the Service; or
(h) attempt to obtain, or assist third parties in obtaining, access to the Service and/or the Content, other than as provided under these Terms and Conditions.
4.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Content and, notify Clarksons Research immediately on becoming aware of any such unauthorised access or use.
4.7 Subject always to clause 15.3, unless otherwise agreed by the parties in writing in an Order Form, the rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer.
4.8 Neither Clarksons Research nor any of the Clarksons Research Parties are liable for any unauthorized use of the Service and/or Content. Customer shall remain liable for all confidential or proprietary information disclosed by the Customer, its Authorised User and the Customer’s Affiliates as a result of any unauthorized use of the Service and/or Content. Clarksons Research may, without notice, choose to block Customer’s (and any Authorised Users’) access to the Service and/or Content (or part of it) if it has reason to believe that the Service and/or Content is being used by an unauthorised person, in any manner inconsistent with the terms of the Agreement or for other reasons deemed appropriate by Clarksons Research in its sole discretion.
5. Customer’s obligations
5.1 The Customer shall:
(a) provide Clarksons Research with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by Clarksons Research in order to provide the Service and Content;
(b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(c) carry out all other Customer’s responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Clarksons Research may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Service and the Content in accordance with the terms of the Agreement and shall be responsible for any Authorised User’s breach of any terms of the Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Clarksons Research and any of the Clarksons Research Parties (as applicable) to perform their obligations under the Agreement, including without limitation the Service;
(f) ensure that its network and systems comply with the relevant specifications provided by Clarksons Research from time to time;
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Clarksons Research’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
(h) ensure that all Clarksons Research Parties’ confidential information (which shall include any pricing information) is kept confidential.
5.2 Clarkson Research will be excused from any failure to perform or delay in performing its obligations under the Agreement to the extent that the Customer (or any of the Authorised Users) fails to perform or delays in performing the Customer’s (and/or its Authorised Users’) obligations under this Agreement and such failure or delay causes (in whole or in part) Clarksons Research’s failure to perform or delay in performing any such obligations under the Agreement.
5.3 The Customer agrees that it, and the Authorised Users, will use the Service only for lawful purposes and only in compliance with: (i) the terms and conditions of the Agreement, and (ii) any reasonable instructions, regulations and guidelines that the Clarkson Research Parties may issue within the Service or otherwise in relation to the Service from time to time.
5.4 Parts of the Service may be subject to legal protections and restrictions imposed by the holder of the applicable rights, and the Customer agrees to comply with any such restrictions in accordance with clause 10.1.
5.5 The Customer warrants and represents that it and its Authorised Users are not restricted by any applicable law or regulation (including any international export restrictions) from accessing or using the Service or any of the Content, and that the Customer is a commercial or governmental entity (or any authorised agency or subdivision) which is authorised to use the AIS Data. In addition, the Customer warrants that it and its Authorised Users have all permissions and governmental licences to use the AIS Data for their commercially recognised business, and will comply in its use of the AIS Data with applicable international telecommunications and maritime laws and the interests of the international community.
5.6 The Customer acknowledges that Orbcomm, when directed by the United States or other international bodies or as required under law, reserves the right to prohibit Clarksons Research from using the AIS Data for certain activities or from providing the AIS Data to certain entities to the extent prohibited by such laws and interests. Customer agrees not to use or provide the AIS Data in a manner inconsistent with any such written prohibitions. Clarksons Research reserves the right to discontinue the AIS Data at its sole and reasonable discretion should these prohibitions be violated. In the event such legal prohibition is so substantial that it overrides the intended purpose of the Agreement, then Clarksons Research shall have the right, in its reasonable business judgment, to terminate the Agreement for convenience upon no less than 30 days’ prior written notice to the Customer.
6. Additional user subscriptions
6.1 Subject to clause 6.2 and clause 6.3, the Customer may, from time to time during any Subscription Term, make a written request to Clarksons Research to order additional User Subscriptions in excess of the number set out in the Order Form.
6.2 Clarksons Research shall evaluate any written request for additional User Subscriptions for Authorised Users and respond to the Customer in writing (in its sole discretion) with approval or rejection of the request and, if approved, shall, if applicable, provide the Customer with an invoice for the Subscription Fees payable for the additional User Subscriptions (pro rated up to the end of the Initial Subscription Term or any Renewal Period, as applicable) which shall be payable in accordance with clause 12 of these Terms and Conditions. To avoid doubt, such payment will be in addition to any other Subscription Fees which remain payable by the Customer prior to the Approval.
6.3 If payment is applicable, no contract in respect of the additional User Subscriptions or access to Content is formed, until full payment of any invoice issued by Clarksons Research for the relevant additional User Subscriptions has been received and cleared by Clarksons Research at which time the Order Form shall be deemed to have been amended accordingly.
7. Service
7.1 In consideration of the mutual obligations set out in this Agreement, Clarksons Research shall, during the Subscription Term, provide the Service to the Customer on and subject to the terms of the Agreement.
7.2 Clarksons Research does not guarantee that the Service (including, without limitation, any Content) will be:
(a) available at all times. There will be times when the Service will be interrupted for maintenance, upgrades or repairs or due to failure of services or equipment, and Clarksons Research reserves the right to suspend or discontinue all or part of the Service at any time with or without notice; and/or
(b) free from errors or omissions, and Clarksons Research is under no obligation to amend or update any aspect of the Service and/or Content.
8. Service Usage Data and Audit
8.1 Clarksons Research shall have the right to collect and retain information about the Customer’s and each Authorised User’s usage of the functionality within the Service (“Service Usage Data”). Such Service Usage Data may be used by Clarksons Research Parties for statistical analysis, for product improvement, for billing and for monitoring of the Customer’s and its Authorised Users’ compliance with the terms of the Agreement. The Customer shall promptly provide full answers to such reasonable questions as Clarksons Research may have about the Customer’s usage of the Service.
8.2 The Customer shall permit Clarksons Research and/or its advisors, on reasonable written notice from Clarksons Research and during normal business hours, to enter the premises of the Customer and to access such systems and information as is reasonably necessary for Clarksons Research to verify the Customer’s compliance with the terms of Agreement (“Audit”).
8.3 In the event that any non-compliance is discovered, either through the Audit or the Service Usage Data, the Customer shall rectify such non-compliance (including any underpayment of Subscription Fees) within 15 days of notice from Clarksons Research requiring the same. If the non-compliance is material (including, in the case of under-payment, 5% or more of the Fees over the previous 6 months), the Customer shall also be liable for and shall pay Clarksons Research’s reasonable costs of carrying out the relevant Audit (if applicable).
9. Disclaimers and No reliance on Content
9.1 Customer acknowledges and agrees that nothing in this Agreement constitutes an undertaking by any of the Clarksons Research Parties to provide: (a) the Content or Service in its present form or under or in accordance with, any specifications; or (b) any specific Content. Clarksons Research (and/or its licensors), in their sole and absolute discretion may from time to time make additions to, deletions from, modifications to, or changes to (including to the format), or withdraw, the Content and/or the Service (or part thereof) without liability.
9.2 To the fullest extent permitted by applicable law: (a) none of the Clarksons Research Parties have made or shall be deemed to have made any representations or warranties whatsoever with respect to the Service or Content (except in respect of any IPR Claim); and (b) the Service, Content and information provided by or on behalf of any of the Clarksons Research Parties, is provided on an “as is” and “as available” basis, and Clarksons Research expressly disclaims any and all warranties, express or implied, including warranties of merchantability, fitness for a particular purpose (except in respect of any IPR Claim). None of the Clarksons Research Parties warrant that the Service or Content will be uninterrupted or error-free, that defects will be corrected, that the Service or Content is free of Viruses or other harmful components, or that the Service, Content and/or the information obtained by the Customer through the Service will meet the Customer’s requirements. The Customer acknowledges that the Service and Content may be subject to limitations, delays and other problems inherent in the use of such communications facilities and agrees that Clarksons Research, its licensors and their respective Affiliates: (i) do not warrant or represent the use of the Service or Content in terms of its correctness, accuracy, reliability, or otherwise; and (ii) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
9.3 The Customer acknowledges and agrees that: (a) none of the Clarksons Research Parties are endorsing or promoting any individual, products or services through the Service and/or Content; and (b) the Service and Content is provided solely for information purposes only, is not advice of any kind, may be inaccurate or incomplete and are subject to error, delay or change.
9.4 The Service and Content is provided for convenience and for information purposes only and nothing in the Service or Content constitutes an offer or solicitation or advice or a recommendation of any kind, including without limitation, with respect to financial, debt, equity or investment purposes. The Customer acknowledges and agrees that it will not rely on the Service or Content in making any decision, financial or otherwise, or to conclude any transaction and access and use of the Service and Content shall be at Customer’s sole risk.
10. Third party providers
10.1 In respect of the Customer’s use of any Third Party Content, Customer agrees that it and the Authorised Users will be bound by and comply with the relevant Third Party Supplier’s applicable terms and conditions (including relevant disclaimers) as notified to the Customer by Clarksons Research or by the relevant Third Party Supplier from time to time in addition to these Terms and Conditions. To the extent of any conflict or inconsistency between them (including, without limitation, Appendix A), these Terms and Conditions shall take precedence.
10.2 Notwithstanding clause 10.1, the Customer hereby agrees, and will ensure that the Authorised Users agree, to be bound by, and comply with, the provisions of Appendix A prior to accessing and/or using any AIS Data, the Content and/or the Service.
10.3 Clarksons Research will not be liable for any Third Party Content, or any other content of websites linked on the Service, and any claim or proceeding in relation to any such content must be brought directly against the relevant Third Party Supplier of such content, subject to clause 10.1. Such links should not be interpreted as an endorsement by Clarksons Research of those linked websites, and Clarksons Research will not be liable for any loss or damage that may arise from the use of such Third Party Content and/or third party websites by the Customer (and/or the Authorised Users).
10.4 The Customer acknowledges that it is a condition of Clarksons Research’s agreement with Orbcomm (“Orbcomm Agreement”) that the Customer and the Authorised Users must agree to be bound by the provisions set out in Appendix A to these Terms and Conditions in order to access and/or use any AIS Data. The Customer hereby acknowledges that any breach by it of Appendix A may result in Clarksons Research committing breaches of and becoming liable in damages under the Orbcomm Agreement. All such damages loss and expenses are hereby agreed to be within the contemplation of the Customer and Clarksons Research Group of Companies as being probable results of any such breach by the Customer and the Customer shall indemnify the Clarksons Research Group of Companies against all such breaches and damages as aforesaid.
10.5 Where the Service contains links to third party websites and resources provided by third parties, these links are provided for information purposes only. Clarksons Research has no control over the content of those third party websites and/or resources. Following any link to an external website is entirely at the Customer’s (and the Authorised Users’) own risk.
11. Clarksons Research’s obligations
11.1 Clarksons Research undertakes that the Service will be performed with reasonable skill and care and in accordance with the terms of the Agreement.
11.2 The undertaking at clause 11.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Clarksons Research’s instructions, or modification or alteration of the Service by any party other than Clarksons Research or Clarksons Research’s duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Clarksons Research will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 11.1.
11.3 The terms of the Agreement shall not prevent Clarksons Research from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the terms of the Agreement.
12. Charges and payment
12.1 The Customer shall pay the Subscription Fees (if applicable) to Clarksons Research for the User Subscriptions in accordance with this clause 12, the Order Form and the terms of the Agreement.
12.2 The Customer shall include on the Order Form relevant valid, up-to-date and complete contact and billing details.
12.3 All Subscription Fees (to the extent applicable) shall be invoiced directly to the Customer and each invoice shall be payable in full by the Customer: (a) monthly in advance; and (b) within 30 days of issue of such invoice (“Due Date”), unless otherwise specified in an Order Form.
12.4 If Clarksons Research has not received any due payment on the Due Date, then without prejudice to any other rights and remedies of Clarksons Research:
(a) Clarksons Research may, without liability to the Customer, disable the Customer’s and Authorised Users’ password, account and access to all or part of the Service and Content and Clarksons Research shall be under no obligation to provide any or all of the Service or Content while the invoice(s) concerned remain(s) unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current lending rate of Clarksons Research’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
12.5 All fees are exclusive of Value Added Tax (VAT) or any relevant local sales taxes, and are payable in full without withholding or deduction of any taxes, for which the Customer shall be responsible. The Provider reserves the right to adjust relevant invoices for any developments in tax rules and regulations or if the Provider is informed of a change to the Customer’s tax status.
12.6 If the invoice provided is not subject to UK VAT, the services could still be subject to VAT in the Customer’s country and the Customer may be liable for this tax under the reverse charge mechanism.
12.7 Unless otherwise agreed in writing by Clarksons Research, all amounts and fees stated or referred to in the Agreement: (a) shall be payable in British pounds sterling; and (b) are non-cancellable and non-refundable.
13. Proprietary rights
13.1 Subject to the licence grants set forth herein, as between the parties all right, title, and interest (including all Intellectual Property Rights embodied therein) in and to the Content and the Service will remain with Clarksons Research or the Clarksons Research Parties (as applicable). No reference to or element of intellectual property of any Clarkson Research Party, including without limitation to any of the Content, in either draft or final form, may be: (a) used by the Customer or the Authorised Users except pursuant to the terms of the Agreement; or (b) protected by Intellectual Property Rights, for example, patented, copyrighted or trademarked, by the Customer or an Authorised User. In the event the Customer or an Authorised User acquires Intellectual Property Rights with respect to the Service and/or Content or otherwise obtains rights with respect thereto, the Customer shall immediately notify Clarksons Research in writing and the Customer shall, and shall ensure that the Authorised Users shall, take such actions and execute such documents as Clarksons Research reasonably requires to vest properly all such rights in Clarksons Research or to any third party as directed by Clarksons Research and to secure all appropriate forms of protection for and defend and enforce such rights.
13.2 The Service and/or Content (or parts of it) may be protected or protectable by patent rights, copyright, trademark, international treaties and other proprietary rights and laws of the United States, United Kingdom and other countries. Customer agrees to abide, and ensure all Authorised Users abide, by all applicable intellectual property laws, as well as any additional notices or restrictions contained in the Service and/or Content. Unauthorised use of the Service and/or Content (any part of it) and any of the materials contained in the Service and/or Content may violate applicable copyright, trademark or other intellectual property laws or other laws and shall be a material breach of the terms of the Agreement.
13.3 The Customer acknowledges that the Data, and the functionality, methods, business processes or practices which generate, support or otherwise form part of the Service, may be protected or protectable as proprietary intellectual property rights of Clarksons Research.
13.4 The Customer will immediately notify Clarksons Research in writing if any allegation, claim or demand is made or action brought against the Customer relating to any infringement or alleged infringement of any Intellectual Property Rights provided or made available to the Customer, the Authorised Users and/or any of its Affiliates under or in connection with the Agreement (“IPR Claim”).
13.5 In the event of an IPR Claim, the Customer agrees that it will:
(a) promptly furnish Clarksons Research with a copy of each communication, notice or other action relating to the IPR Claim; and
(b) not, without Clarksons Research’s prior written consent, undertake any act or omission (including making any disclosures or admissions) with regard to the defence or settlement of any such IPR Claim which, in Clarksons Research’s reasonable opinion, would adversely affect any of the Clarksons Research Parties.
13.6 If any IPR Claim is made or, in the reasonable opinion of Clarksons Research is likely to be made against the Customer, Clarksons Research may, without liability, terminate the Agreement by notice to the Customer with immediate effect.
14. Indemnity
14.1 The Customer shall defend, indemnify and hold harmless the Clarksons Research Parties against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's and/or any Authorised User’s: (a) use of, or access to, the Service and/or Content; (b) violation and/or breach of any of the terms of the Agreement; and (c) use of, or access to, the Customer’s Account by any unauthorised party.
15. Limitation of liability
15.1 Nothing in the Agreement excludes the liability of Clarksons Research:
(a) for death or personal injury caused by Clarksons Research’s negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) to the extent not permitted under applicable law.
15.2 Subject to clause 15.1:
(a) the Customer acknowledges that in no event shall Clarksons Research have any liability in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Agreement for any special, incidental, indirect or consequential losses or any of the following losses, in each case, whether direct, consequential, special, incidental or indirect: loss of profits; loss of revenue; loss of business or contracts; loss of anticipated savings; loss of goodwill or damage to reputation; or loss or corruption of data, even if Clarksons Research or the Clarksons Research Parties and/or any other party have been advised of the possibility thereof;
(b) and subject to clauses 15.2(a), 15.2(c), 15.3 and 15.4, Clarksons Research’s total aggregate liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in respect of all Losses incurred by the Customer as a result of any events occurring in any Year, shall be limited to £100,000; and
(c) and subject to clauses 15.2(a), 15.3 and 15.4, in relation to IPR Claims notwithstanding any other provision to the contrary in the Agreement, Clarksons Research’s total aggregate liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise in respect of all Losses in respect of all IPR Claims, shall be limited to £500,000.
15.3 Subject to clause 15.1, neither Clarksons Research, nor the Clarksons Research Parties will be liable or responsible in negligence or otherwise to any person not a party to the Agreement for: (i) any information, data or advice expressly or impliedly given by or on behalf of Clarksons Research or the Clarksons Research Parties; or (ii) any act, omission or inaccuracy by Clarksons Research or the Clarksons Research Parties and, to avoid doubt, only the Customer (and none of its Affiliates) shall be entitled to enforce any provision of this Agreement (and any right relating to or connected with this Agreement whether arising in tort or otherwise) solely and exclusively against Clarksons Research.This right shall apply both in respect of any breach of this Agreement by Clarksons Research and in respect of any breach by any of the Clarksons Research Parties.
15.4 Without prejudice to clause 15.3, except and to the extent set out in clauses 10.1 and 10.3 in relation to Third Party Content provided by other entities, no Clarkson Research Party other than Clarksons Research will be liable to the Customer under the Agreement whether in contract tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise and the Customer shall have no right of action against any of Clarksons Research’s Affiliates under or in connection with the Agreement.In respect of losses caused by any of Clarksons Research’s Affiliates, the Customer shall only be entitled to bring a claim against Clarksons Research, as if such losses had been caused by Clarksons Research itself.
15.5 Any limitations and exclusions of liability in this Agreement for the benefit of Clarksons Research shall apply to all of Clarksons Research’s Affiliates and any financial cap on Clarksons Research’s liability shall apply in aggregate across Clarksons Research together with all of Clarksons Research’s Affiliates.
15.6 The Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action brought by the Customer arising out of or related to use of the Service and/or Content or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
16. Term and termination
16.1 The Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of the Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
16.2 Notwithstanding any provision to the contrary in the Agreement, Clarksons Research may also suspend and/or terminate the Agreement and/or access to the Service and/or Content, in whole or in part, immediately on notice (and without liability):
(a) at any time for its convenience;
(b) to the extent Clarksons Research’s access to any Content belonging to its licensors or any third party is suspended, revoked, inaccessible or terminated;
(c) if Orbcomm requests such a cancellation;
(d) should the Customer and/or any Authorised User breach any terms of the Agreement (including the terms of Appendix A);
(e) if there is a change in Control of the Customer;
(f) if the Customer undergoes an Insolvency Event; or
(g) where stated elsewhere in the Agreement.
16.3 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate;
(b) the Customer shall return to Clarksons Research, or destroy (as requested by Clarksons Research) and make no further use of any Content and other items (and all copies of them) made available via the Website whether in physical form or electronic form or otherwise;
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
17. Miscellaneous
17.1 Clarksons Research shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Clarksons Research or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
17.2 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
17.3 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
17.4 If any provision (or part of a provision) of the Agreement are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, then subject to clause 17.5 that provision shall be deemed to be deleted and the other provisions shall remain unaffected and in full force.
17.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.6 The Agreement, together with any documents referred to in it, constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.7 Each of the parties acknowledges and agrees that in entering into the Agreement, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement, and shall (subject to clause 15.1) have no remedy in respect of the same.
17.8 The Customer shall not, without the prior written consent of Clarksons Research, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
17.9 Clarksons Research may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Agreement.
17.10 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17.11 The Customer acknowledges that any breach of the terms of the Agreement may cause irreparable harm to any Clarksons Research Parties for which monetary damages may not be sufficient, and the Customer agrees that each of the Clarksons Research Parties will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. Nothing in the Agreement will be construed to create rights in favor of any person not a party to the Agreement other than the Clarksons Research Parties which shall be intended third party beneficiaries of the Agreement.
17.12 Save as provided for in clause 17.11, the Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
17.13 Notwithstanding clause 17.12, Clarksons Research may revise these Terms and Conditions at any time by providing notice on the Website. The Customer acknowledges that it must check the Website from time to time to take notice of any changes Clarksons Research may make, as such changes are binding on the Customer.
17.14 To the extent of any conflict or ambiguity between these Terms and Conditions, the Order Form, the Privacy Policy and the Cookies Policy, the following decreasing order of precedence shall apply (with the provisions applying earlier in the list therefore prevailing over those which follow later in this list below): (i) these Terms and Conditions; (ii) the Privacy Policy; (iii) the Cookies Policy; and (iv) the Order Form, unless the parties expressly amend the terms of the Agreement in an Order Form in relation to the subject matter of the User Subscriptions, Subscription Fees and/or the Subscription Term in which case such terms on the Order Form shall take precedence over (i) these Terms and Conditions; (ii) the Privacy Policy; and (iii) the Cookies Policy.
17.15 The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
17.16 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
17.17 Nothing in clause17.16 will prevent either party from applying to the courts of any other country for injunctive or other interim relief or for enforcement purposes of any English judgment.
Appendix A (Orbcomm Mandatory Flowdowns)
The definitions in the Terms & Conditions shall have the same meaning in this Appendix A unless alternative definitions for those defined terms are stated in the Appendix A, in which case the alternative definitions will apply in respect of those defined terms.
For the purposes of this Appendix A, the following terms, when capitalised, have the following meanings:
“AIS Data” shall mean AIS Data with respect to ship movements and positions (AIS Message Types 1, 2, 3, 5, 18, 19 and 24) collected and distributed by ORBCOMM from satellites and other assets equipped with AIS receivers to the extent they are providing service for the AIS Data. AIS Data does not include Derivative Works.
“Sea/net” shall mean the software system produced by Clarksons Research or the Clarksons Research Group of Companies that merges information from various data providers (including without limitation Orbcomm) and used by Clarksons Group of Companies for analytical purposes.
“Derivative Works” shall mean the product of integration and/or combination of AIS Data with other Company or third party data and processing thereof within Sea/net or otherwise to create work product that models vessel tracking, supply, demand, efficiency, and /or utilization, including, by way of example and without limitation, work product displayed on Sea/net and Clarksons’ unique “Tonnedays” and “Annual Deadweight Demand” metrics.
“Sublicensee” means the Customer and their affiliates, together with their respective employees and subcontractors (including independent contractors and/or consultants).