Software Agreement

Software Agreement

This document governs the use of OHQ Cloud.

Background
  1. The Provider owns and operates a range of Hosted Services which have been created to assist Maritime Administrations and related enterprises in their work;
  2. The Customer has a requirement for the use of some, or all, of the Provider's Hosted Services;
  3. The Provider and the Customer therefore wish to enter into a contract in accordance with the provisions of this Agreement.
Agreement

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this Agreement:

"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;

"Anniversary date" means the month and day equivalent to the effective date occurring in each year following the minimum term;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts:

  • (a) the amounts specified on the pricing page available on the Provider's website; and
  • (b) such amounts as may be agreed in writing by the parties from time to time;

"Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer Confidential Information" means:

  • (a) any information disclosed by the Customer to the Provider at any time before the termination of this agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
    • (i) was marked or described as "confidential"; or
    • (ii) should have been reasonably understood by the Provider to be confidential; and
  • (b) the Customer Data;

"Customer Data" means all data, works and materials uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

"Customer Indemnity Event" has the meaning given to it in Clause 23.3;

"Customer Personal Data" "means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data with respect to which the Provider is a data controller;

"Customer Representatives" means the person or persons identified as such in section 7 of Schedule 1 (Hosted Services particulars), and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

"Customer Systems" means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Hosted Services;

"Customisation" means a customisation of the Hosted Services, whether made through the development, configuration or integration of software, or otherwise;

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means the date of execution of this Agreement;

"Expenses" means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider's obligations under this Agreement;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means the services provided through Oceans Cloud and those component parts of it as are specified in this Agreement and in the Hosted Services specification where this is provided;

"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

  • (a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
  • (b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
  • (c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
  • (d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.

"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in section 4 of Schedule 1 (Hosted Services particulars) and in the Documentation;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or not, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Minimum term" means; in respect to this agreement, the period of 36 months beginning on the effective date;

"Personal Data" has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

"Provider Confidential Information" means:

  • (a) any information disclosed by or on behalf of the Provider to the Customer at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential; and
  • (b) the terms of this Agreement.

"Provider Indemnity Event" has the meaning given to it in Clause 23.1;

"Provider Representatives" means the person or persons identified as such in section 7 of Schedule 1 (Hosted Services particulars), and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;

"Schedule" means any schedule attached to the main body of this Agreement;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

"Setup Services" means the configuration, implementation and integration of the Hosted Services in accordance with section 1 of Schedule 1 (Hosted Services particulars);

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;

"Supported Web Browser" means the current stable release of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;

"Third Party Services" means any hosted or cloud services provided by any third party that may transmit data to and/or from the Hosted Services;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software.

2. Term

2.1. This Agreement shall come into force upon the Effective Date.

2.2. This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 26 or any other provision of this Agreement.

3. Setup Services

3.1. The Provider shall provide the Setup Services to the Customer.

3.2. The Provider shall use all reasonable endeavours to ensure that the Setup Services are provided in accordance with the timetable set out in section 1 of Schedule 1 (Hosted Services particulars).

3.3. The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Setup Services; and subject to Clause 24.1 the Provider will not be liable to the Customer in respect of any failure to meet the Setup Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.

3.4. Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Setup Services by the Provider shall be the exclusive property of the Provider.

4. Hosted Services

4.1. The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account upon the completion of the Setup Services.

4.2. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the business purposes of the Customer during the Term.

4.3. The licence granted by the Provider to the Customer under Clause 4.2 is limited to the extent that the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer.

4.4. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

  • (a) the Customer must not sub-license its right to access and use the Hosted Services;
  • (b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
  • (c) the Customer must not use the Hosted Services to provide services to third parties without prior written agreement;
  • (d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
  • (e) the Customer must not make any alteration to the Platform.

4.5. The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.

4.6. The parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern the availability of the Hosted Services.

4.7. The Customer must comply with the terms of the Acceptable Use Policy and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with its terms.

4.8. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.9. The Customer must not use the Hosted Services:

  • (a) in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.10. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosted Services, at any time.

5. Customisations

5.1. The Provider and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in writing by the parties.

5.2. All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider (unless the parties agree otherwise in writing).

5.3. From the time and date when a Customisation is first delivered or made available by the Provider to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by Clause 5.

5.4. The Customer acknowledges that the Provider may make any Customisation available to any of its other customers or any other third party at any time after the end of the period of 30 days following the making available of the Customisation to the Customer.

6. Maintenance Services

6.1. The Provider shall provide the Maintenance Services to the Customer.

6.2. The Provider shall provide the Maintenance Services with reasonable skill and care.

6.3. The Provider shall provide the Maintenance Services in accordance with Schedule 4 (Maintenance SLA).

6.4. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

7. Support Services

7.1. The Provider shall provide the Support Services to the Customer.

7.2. The Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

7.3. The Provider shall provide the Support Services in accordance with Schedule 5 (Support SLA).

7.4. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

8. Customer Obligations

8.1. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

  • (a) co-operation, support and advice;
  • (b) information and documentation; and
  • (c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

8.2. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

9. Customer Systems

9.1. The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of section 5 of Schedule 1 (Hosted Services particulars) in all material respects, subject to any changes agreed in writing by the Provider.

10. Customer Data

10.1. The Customer hereby grants to the Provider a non-exclusive licence to the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.

10.2. The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

10.3. The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken.

10.4. Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 10.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

11. Integrations with Third Party Services

11.1. The Provider may integrate any Third Party Services with the Hosted Services with the prior written consent of the Customer.

11.2. The Provider may remove, suspend or limit any Third Party Services integration at any time in its sole discretion.

11.3. The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.

11.4. The Customer acknowledges that:

  • (a) the integration of Third Party Services may entail the transfer of Customer Data from the Hosted Services to the relevant Third Party Services; and
  • (b) the Provider has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Third Party Services.

11.5. Without prejudice to its other obligations under this Clause 11, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:

  • (a) the transfer of relevant Customer Personal Data to a provider of Third Party Services is lawful; and
  • (b) the use of relevant Customer Personal Data by a provider of Third Party Services is lawful.

11.6. The Customer shall have the opportunity to consent to transfers of Customer Data to any Third Party Services operator. The Provider must ensure that such transfers shall not take place without the consent of the Customer.

11.7. The use of some features of the Hosted Services may depend upon the Customer enabling and agreeing to integrations between the Hosted Services and Third Party Services.

11.8. The Customer warrants to the Provider that the transfer of Customer Data by the Provider to a provider of Third Party Services in accordance with this Clause 11 will not infringe any person's legal or contractual rights and will not put the Provider in breach of any applicable laws.

11.9. Additional Charges may be payable by the Customer to the Provider in respect of a Third Party Services integration.

11.10. Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 24.1:

  • (a) the Provider gives no warranties or representations in respect of any Third Party Services; and
  • (b) the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.

12. No Assignment of Intellectual Property Rights

12.1. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

13. Representatives

13.1. The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in this Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:

  • (a) may treat all such instructions as the fully authorised instructions of the Provider; and
  • (b) may decline to comply with any other instructions in relation to that subject matter.

13.2. The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in this Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

  • (a) may treat all such instructions as the fully authorised instructions of the Customer; and
  • (b) may decline to comply with any other instructions in relation to that subject matter.

14. Management

14.1. The parties shall hold management meetings by telephone conference or using internet-based conferencing facilities:

  • (a) once per year during the Term; and
  • (b) at the reasonable request of either party.

14.2. A party requesting a management meeting shall give to the other party at least 10 Business Days written notice of the meeting.

14.3. Wherever necessary to enable the efficient conduct of business, the Provider shall be represented at management meetings by at least 1 Provider Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

15. Charges

15.1. The Customer shall pay the Charges to the Provider in accordance with this Agreement.

15.2. If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 15.2.

15.3. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

15.4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 5%.

16. Expenses

16.1. The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

16.2. The Provider must collect and collate evidence of all Expenses, and must retain such evidence during the time that this agreement is in force and for a period of 90 days following the termination of this agreement.

16.3. Within 10 Business Days following receipt of a written request from the Customer to do so, the Provider must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

17. Payments

17.1. The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in section 6 of Schedule 1 (Financial provisions).

17.2. The Customer must pay the Charges to the Provider within the period specified in Schedule 1 following the issue of an invoice in accordance with this Clause 17. And with any financial provisions included in Schedule 1.

17.3. The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Provider to the Customer from time to time).

17.4. If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

  • (a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
  • (b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998; and
  • (c) display relevant licensing notifications within the Hosted Services until such time as the Provider receives payment from the Customer in relation to the Charges.

18. Confidentiality Obligations

18.1. The Provider must:

  • (a) keep the Customer Confidential Information strictly confidential;
  • (b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
  • (c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; and
  • (d) act in good faith at all times in relation to the Customer Confidential Information.

18.2. The Customer must:

  • (a) keep the Providers Confidential Information strictly confidential;
  • (b) not disclose the Providers Confidential Information to any person without the Providers prior written consent, and then only under conditions of confidentiality approved in writing by the Provider;
  • (c) use the same degree of care to protect the confidentiality of the Providers Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care; and
  • (d) act in good faith at all times in relation to the Provider Confidential Information.

18.3. Notwithstanding Clauses 18.1 and 18.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

18.4. No obligations are imposed by this Clause 18 with respect to a party's Confidential Information if that Confidential Information:

  • (a) is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
  • (b) is or becomes publicly known through no act or default of the other party; or
  • (c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

18.5. The restrictions in this Clause 18 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

18.6. Upon the termination of this Agreement, each party must immediately cease to use the other party's Confidential Information.

18.7. Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information, and must irrevocably delete the other party's Confidential Information from its computer systems.

18.8. The provisions of this Clause 18 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.

19. Publicity

19.1. Neither party may make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

19.2. Nothing in this Clause 19 shall be construed as limiting the obligations of the parties under Clause 18.

20. Data Protection

20.1. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

20.2. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.

20.3. The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in section 1 of Schedule 6 (Data processing information) and of the types specified in section 2 of Schedule 6 (Data processing information); and the Provider shall only process the Customer Personal Data for the purposes specified in section 3 of Schedule 6 (Data processing information).

20.4. The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 20.

20.5. The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.

20.6. Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

20.7. The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

20.8. The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

20.9. The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to the same or equivalent legal obligations as those imposed on the Provider by this Clause 20.

20.10. The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

20.11. The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

20.12. The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 20 and the Data Protection Laws.

20.13. The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

20.14. The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 20. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 20.14.

20.15. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

21. Warranties

21.1. The Provider warrants to the Customer that:

  • (a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
  • (b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
  • (c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

21.2. The Provider warrants to the Customer that:

  • (a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
  • (b) the Hosted Services will be free from Hosted Services Defects;
  • (c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
  • (d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
  • (e) the Platform will incorporate security features reflecting the requirements of good industry practice.

21.3. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.

21.4. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

21.5. If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

  • (a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  • (b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

21.6. The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

21.7. All of the parties warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

22. Acknowledgements and Warranty Limitations

22.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

22.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

22.3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

22.4. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

23. Indemnities

23.1. The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a "Provider Indemnity Event").

23.2. The Customer must:

  • (a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
  • (b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
  • (c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
  • (d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, and the Provider's obligation to indemnify the Customer under Clause 23.1 shall not apply unless the Customer complies with the requirements of this Clause 23.2.

23.3. The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a "Customer Indemnity Event").

23.4. The Provider must:

  • (a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
  • (b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
  • (c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
  • (d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, and the Customer's obligation to indemnify the Provider under Clause 23.3 shall not apply unless the Provider complies with the requirements of this Clause 23.4.

23.5. The indemnity protection set out in this Clause 23 shall be subject to the limitations and exclusions of liability set out in this Agreement.

24. Limitations and Exclusions of Liability

24.1. Nothing in this Agreement will:

  • (a) limit or exclude any liability for death or personal injury resulting from negligence;
  • (b) limit or exclude any liability for fraud or fraudulent misrepresentation;
  • (c) limit any liabilities in any way that is not permitted under applicable law; or
  • (d) exclude any liabilities that may not be excluded under applicable law.

24.2. The limitations and exclusions of liability set out in this Clause 24 and elsewhere in this Agreement:

  • (a) are subject to Clause 24.1; and
  • (b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

24.3. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

24.4. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

24.5. The Provider shall not be liable to the Customer in respect of any loss of revenue or income.

24.6. Neither party shall be liable to the other party in respect of any loss of use or production.

24.7. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

24.8. Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 24.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 10.3 and Clause 10.4.

24.9. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

24.10. The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed 25% of the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

24.11. The aggregate liability of the Customer to the Provider under this Agreement shall not exceed the greater of:

  • (a) £50,000; or
  • (b) the total amount paid and payable by the Customer to the Provider under this Agreement.

25. Force Majeure Event

25.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

25.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

  • (a) promptly notify the other; and
  • (b) inform the other of the period for which it is estimated that such failure or delay will continue.

25.3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

26. Termination

26.1. The Provider may terminate this Agreement by giving to the Customer not less than 30 days written notice of termination, expiring after the end of the Minimum Term or thereafter on each anniversary date. The Customer may terminate this Agreement by giving to the Provider not less than 30 days written notice of termination, expiring after the end of the Minimum Term or thereafter on each anniversary date.

26.2. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

  • (a) the other party commits any material breach of this Agreement, and the breach is not remediable;
  • (b) the other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
  • (c) the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).

26.3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

  • (a) the other party:
    • (i) is dissolved;
    • (ii) ceases to conduct all (or substantially all) of its business;
    • (iii) is or becomes unable to pay its debts as they fall due;
    • (iv) is or becomes insolvent or is declared insolvent; or
    • (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  • (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  • (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or

26.4. The Provider may terminate this Agreement immediately by giving written notice to the Customer if:

  • (a) any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
  • (b) the Provider has given to the Customer at least 30 days written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 26.4.

27. Effects of Termination

27.1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 16.2, 16.3, 17.2, 17.4, 18, 19, 20.1, 20.3, 20.4, 20.5, 20.6, 20.7, 20.8, 20.9, 20.10, 20.11, 20.12, 20.13, 20.14, 20.15, 23, 24, 27, 28, 31, 32, 33, 34, 35, 36, 37 and 38.

27.2. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

27.3. Within 30 days following the termination of this Agreement for any reason:

  • (a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
  • (b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties other legal rights.

28. Non-solicitation of Personnel

28.1. The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 3 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of this Agreement.

28.2. The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 3 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of this Agreement.

29. Notices

29.1. Any notice given under this Agreement must be in writing, whether or not described as "written notice" in this Agreement.

29.2. Any notice given by the Customer to the Provider under this Agreement may be:

  • (a) delivered personally;
  • (b) sent by courier;
  • (c) sent by email; or
  • (d) submitted using the Provider's online contractual notification facility, using the relevant contact details set out in section 8 of Schedule 1 (Hosted Services particulars).

29.3. Any notice given by the Provider to the Customer under this Agreement may be:

  • (a) delivered personally;
  • (b) sent by courier;
  • (c) sent by recorded signed-for post; or
  • (d) sent by email; using the relevant contact details set out in section 8 of Schedule 1 (Hosted Services particulars).

29.4. The addressee and contact details set out in section 8 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 29.

29.5. A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

29.6. A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

  • (a) in the case of notices delivered personally, upon delivery;
  • (b) in the case of notices sent by courier, upon delivery;
  • (c) in the case of notices sent by post, 72 hours after posting;
  • (d) in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent); and
  • (e) in the case of notices submitted using an online contractual notification facility, upon the submission of the notice form.

30. Subcontracting

30.1. The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

30.2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

30.3. Notwithstanding the provisions of this Clause 30 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

31. Assignment

31.1. The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under this Agreement, providing that the Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.

31.2. The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer's contractual rights and obligations under this Agreement, providing that the Customer may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

32. No Waivers

32.1. No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

32.2. No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

33. Severability

33.1. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

33.2. If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

34. Third Party Rights

34.1. This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

34.2. The exercise of the parties rights under this Agreement is not subject to the consent of any third party.

35. Variation

35.1. This Agreement may not be varied except by means of a written document signed by or on behalf of each party, without prejudice.

36. Entire Agreement

36.1. The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

36.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

36.3. The provisions of this Clause 36 are subject to Clause 24.1.

37. Law and Jurisdiction

37.1. This Agreement shall be governed by and construed in accordance with English law.

37.2. Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

38. Interpretation

38.1. In this Agreement, a reference to a statute or statutory provision includes a reference to:

  • (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
  • (b) any subordinate legislation made under that statute or statutory provision.

38.2. The Clause headings do not affect the interpretation of this Agreement.

38.3. References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

38.4. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 1: Hosted Services Particulars

1. Setup Services

1.1. Setup services shall include: 


  • (a) Creation of the Customer's primary account on Oceans Cloud;
  • (b) Configuration of security protections and backup arrangements for the Customer's account;
  • (c) Collection of the Customer's crests and logos in suitable electronic format for inclusion in the standard templates for output documents;
  • (d) Testing of standard document outputs;
  • (e) Deployment of the licensed software to the Customer's account;
  • (f) Appropriate web-based user training for the Customer's staff that have an active user account.

1.2. Setup will require 10 business days from the effective date.

2. Completion of Setup

2.1. On completion of setup the customer will have:


  • (a) Administrator access to Oceans Cloud with access to the Services that have been subscribed to;

  • (b) Full access to user manuals for staff reference;

  • (c) The capability to test all areas of the Services and to input test data;

  • (d) Access to Helpdesk for queries and questions on the use of the software;
  • (e) The ability to assign users and user levels to suit the Customer's needs.

2.2. On completion of setup services, the Provider will, on receipt of notice in accordance with clause 4.3, remove any and all test data and test accounts entered by the Customer during the acceptance period.

3. Migration of Customer Data

3.1. The Provider will review the Customer's existing data, where it is available in a common electronic format.





3.2. The Provider will import the Customer's existing data into the Service, provided that section 3.1 of Schedule 1 shows that the data can be extracted, transformed where necessary and imported by the Provider using reasonable skill within a period of 5 business days.


3.3. Where the Customer's existing data cannot be migrated within a period of 5 business days, the Provider and Customer will agree on a scope of work, a reasonable expectation of time, and charges for any work in excess of 5 business days.

4. Specification of Hosted Services

4.1. This agreement covers the following Hosted Services:

  • (a)
 Oceans Cloud;
  • (b) Oceans Atlas;
  • (c) Oceans Frontier;
  • (d) Oceans Projects;
  • (e) Oceans Voyager; and
  • (f) Any Hosted Services within Oceans Cloud to which the customer has subscribed.



5. Customer Systems

5.1. The Customer will be able to access the Hosted Services using any internet-connected computer, using any of the supported browsers.


5.2. The provision and connection of printers, scanners and other peripherals to the Customer's computers and the way that any such peripheral is connected to the computers is purely a matter for the Customer.



6. Financial Provisions

6.1. The Customer will pay the agreed charges as specified in the proposal produced by the Provider once these terms and conditions are agreed by the signature of an authorised representative of the Customer.


6.2. Invoices for charges will be issued by the provider to the customer and shall be payable;


  • (a) Within 7 days for any invoice related to an agreed charge;
  • (b) Within 7 days in relation to any invoice for monthly charges or quarterly charges; and

  • (c) Within 30 days for any invoice related to annual charges.


6.3. Any invoice for recurrent chargeable services shall be issued by the Provider on the 5th day prior to the period to which it relates.



7. Representatives

7.1. The Provider's Representatives are:

7.2. The Customer's Representatives are:

8. Contractual Notices

8.1. To the Provider at: Oceans HQ Ltd, 71-75 Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ

8.2. To the Customer at:

Schedule 2: Acceptable Use Policy

1. Introduction

1.1. This acceptable use policy (the "Policy") sets out the rules governing:

  • (a) use of Oceans Cloud, any successor website, and the services available on that website or any successor website (the "Services"); and
  • (b) the transmission, storage and processing of content by the Customer, or by any person on the Customer's behalf, using the Services ("Content").

1.2. By using the Services, the Customer agrees to the rules set out in this Policy.

1.3. The Provider will ask the Customer for the express agreement to the terms of this Policy before users upload or submit any Content or otherwise use the Services.

1.5. The Customer must be at least 18 years of age to use the Services; and by using the Services, the Customer warrants and represents to the Provider that the Customer is at least 18 years of age.

2. General Usage Rules

2.1. The Customer must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2. The Customer must not use the Services:

  • (a) in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.3. The Customer must ensure that all Content complies with the provisions of this Policy.

3. Graphic Material

3.1. Content must be appropriate for all persons who have access to or are likely to access the Content in question.

3.2. Content must not depict violence.

3.3. Content must not be pornographic or sexually explicit.

4. Etiquette

4.1. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

4.2. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

4.3. Content must not be liable to cause annoyance, inconvenience or needless anxiety.

4.4. The Customer must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.

4.5. The Customer must not use the Services for the purpose of deliberately upsetting or offending others.

4.6. The Customer must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

4.7. The Customer must ensure that Content is appropriately categorised.

4.8. The Customer should use appropriate and informative titles for all Content.

4.9. The Customer must at all times be courteous and polite to other users of the Services.

5. Marketing and Spam

5.1. The Customer must not without the Provider's written permission, use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.

5.2. Content must not constitute or contain spam, and the Customer must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

5.3. The Customer must not send any spam to any person using any email address or other contact details made available through the Services or that the Customer finds using the Services.

5.4. The Customer must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

6. Monitoring

6.1. The Customer acknowledge that the Provider may actively monitor the Content and the use of the Services.

7. Hyperlinks

7.1. The Customer must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

8. Harmful Software

8.1. The Content must not contain or consist of, and the Customer must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

8.2. The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

Schedule 3: Availability SLA

1. Introduction to Availability SLA

1.1. This Schedule 3 sets out the Provider's availability commitments relating to the Hosted Services.


1.2. In this Schedule 3, "uptime" means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.

2. Availability

2.1. The Provider shall use all reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.5% during each calendar month.


2.2. The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.


2.3. The Customer may verify uptime by referencing https://status.oceanshq.com at any time.



3. Service Credits

3.1. In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in section 2.1, the Customer shall earn service credits in accordance with the provisions of this section 3 of Schedule 3.


3.2. The service credits earned by the Customer shall be as follows:

  • For each occasion in a month when the uptime is less than that specified in 2.1, the Customer shall earn a service credit calculated as 1/365 of the total annual fees due to the provider by the customer for the year.

3.3. The Provider shall deduct an amount equal to the service credits due to the Customer under this section 3 of Schedule 3 from amounts invoiced in respect of the Charges for the Hosted Services. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.

3.4. Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee in section 2.1 of Schedule 3, except where the failure amounts to a material breach of this Agreement.


3.5. Upon the termination of this Agreement, the Customer's entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Hosted Services following such termination.




4. Exceptions

4.1. Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in section 2.1 of Schedule 3:

  • (a) a Force Majeure Event;
  • (b) a fault or failure of the internet or any public telecommunications network;
  • (c) a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
  • (d) a fault or failure of the Customer's computer systems or networks;
  • (e) any breach by the Customer of this Agreement; or
  • (f) scheduled maintenance carried out in accordance with this Agreement.
Schedule 4: Maintenance SLA

1. Introduction

1.1. This Schedule 4 sets out the service levels applicable to the Maintenance Services.



2. Scheduled Maintenance Services

2.1. The Provider shall where practicable, give to the Customer at least 10 Business Days prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 4.


2.2. The Provider shall provide all scheduled Maintenance Services.



3. Updates

3.1. The Provider shall apply Updates to the Hosted Services as follows:

  • (a) third party security updates shall be applied to the Hosted Services promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security update;
  • (b) the Provider's security updates shall be applied to the Hosted Services promptly following the identification of the relevant security risk and the completion of the testing of the relevant update; and
  • (c) other Updates shall be applied to the Hosted Services in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.

4. Upgrades

4.1. The provider shall make available to the Customer any upgrades that are developed for the Hosted Services specifically subscribed for as soon as the upgrades have passed the Provider's quality assurance and testing procedures.

Schedule 5: Support SLA

1. Introduction

1.1. This Schedule 5 sets out the service levels applicable to the Support Services.



2. Helpdesk

2.1. The Provider shall make available to the Customer a Helpdesk in accordance with the provisions of this Schedule 5.


2.2. The Customer shall use the Helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; the Customer must not use the Helpdesk for any other purpose.


2.3. The Provider shall ensure that the Helpdesk is accessible using the Provider's web-based ticketing system and via email.


2.4. The Provider shall ensure that the Helpdesk is operational and adequately staffed during Business Hours during the Term.


3. Response and Resolution

3.1. Issues raised through the Support Services shall be categorised as follows:

  • (a) serious: a core function of the Hosted Services is significantly impaired; or
  • (b) minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.

3.2. The Provider shall determine, acting reasonably, into which severity category an issue falls.


3.3. The Provider shall use all reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

  • (a) serious: 4 Business Hours; or
  • (b) minor: 5 Business Days.

3.4. The Provider shall ensure that its response to a request for Support Services shall include the following information, to the extent such information is relevant to the request:

  • (a) an acknowledgement of receipt of the request;
  • (b) where practicable, an initial diagnosis in relation to any reported error; and
  • (c) an anticipated timetable for action in relation to the request.

3.5. The Provider shall use all reasonable endeavours to resolve issues promptly, and in accordance with the following time periods:

  • (a) serious: 12 Business Hours; and
  • (b) minor: 10 Business Days.



3.6. In the event the Customer's subscription includes priority support, requests for Support Services will be prioritised over requests by Customers without priority support.

4. Provision of Support Services

4.1. Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.



5. Limitations on Support Services

5.1. If the total hours spent by the Provider performing the Support Services during any calendar month exceeds 3 working days then:

  • (a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period;
  • (b) the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to time-based additional Charges; and
  • (c) the Provider will send a quotation to the Customer for the provision of time-based additional Charges before work commences. The Customer, at their discretion may accept or reject the quotation.

5.2. The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

  • (a) improper use of the Hosted Services by the Customer; or
  • (b) any alteration to the Hosted Services made without the prior consent of the Provider.
Schedule 6: Data Processing Information

1. Categories of data subject

1.1. The following categories of data subjects are processed by the Hosted Services:

  • (a) Ship owners
  • (b) Ship managers
  • (c) Seafarers
  • (d) Customer's staff and Affiliates

2. Types of Personal Data

2.1. The following types of personal data may be processed:

  • (a) Name
  • (b) Address
  • (c) Contact details including telephone and email
  • (d) Gender
  • (e) Passport details
  • (f) Profile pictures
  • (g) Medical certificates

3. Purposes of processing

3.1. The data subject has given consent to the processing of his or her personal data for one or more specific purposes.

3.2. Processing is necessary for compliance with a legal obligation to which the controller is subject.

3.3. Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

3.4. Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

3.5. Where the Provider is the Data Processor, the legal basis is determined by the Customer.

3.6. Where the Provider is the Data Controller, the legal basis is "processing is necessary for the purposes of legitimate interests pursued by the controller".

4. Sub-processors of Personal Data

4.1. The Provider's suppliers are subject to appropriate safeguards, operating in accordance with the Provider's specific instructions and limitations, and in full compliance with Data Protection Law. Sub-processors include:

  • (a) Hosting Providers – to manage our secure enterprise data centres;
  • (b) Email Providers - to manage our inbound and outbound email services;
  • (c) Security Providers – to protect our systems from attack;
  • (d) Telephony Providers – we might record calls for training, quality and security purposes;
  • (e) Authentication Providers - to ensure only authenticated users can access the Services;
  • (e) Analytics Providers - to inform the Provider of system usage;
  • (f) Real-time System Monitoring Providers - to alert the Provider to any issues relating to the Hosted Services.

4.2. We may also have access to your personal information as part of delivering the service. If we need to change or add additional third parties, we will always update our Privacy Notice accordingly. We will only disclose your information to other parties in the following limited circumstances:

  • (a) Where we are legally obliged to do so, for example to law enforcement and regulatory authorities;
  • (b) Where there is a duty to disclose in the public interest;
  • (c) Where disclosure is necessary to protect the Provider's interest, for example to prevent or detect crime and fraud;
  • (d) Where the Customer gives the Provider permission to do so.