1.1 “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with, Customer or SeaLogs.
1.3 “SeaLogs” means Secure Resolutionz Limited. Ltd.
1.5 “Confidential Information” means all information, whether in writing, electronically or orally disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified by the disclosing Party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.7 “Documentation” means the documentation provided by SeaLogs to Customer in electronic format that describe the features, functions and operation of the SeaLogs Services.
1.8 “Eligible User” means any individual affiliated with Customer who Customer authorizes to use the SeaLogs Services. If a Customer is an individual, the Customer may be the same person as the Eligible User. As between a Customer and an Eligible User, the Customer will be the owner of the SeaLogs Data and Customer is responsible for the acts and omissions of its Eligible Users.
1.9 “Order” means an order for SeaLogs Services.
1.10 “Parties” means SeaLogs and Customer, each a Party.
2.1 Use of Software.SeaLogs grants You the right to access and use the Service via the Website or Application with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
2.1.1 The Subscriber selects the subscription type and payment is calculated per vessel per month at the subscription pricing rate; removing or adding vessels changes the pricing rate;
2.1.2 The Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
2.1.3 The Subscriber is responsible for all Invited Users’ use of the Service;
2.1.4 The Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
If there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
2.1 Provision of Access. Subject to payment of the applicable fees, SeaLogs hereby grants Customer a non-exclusive, non-transferable right to permit access to and use of the SeaLogs Services during the Term for the number of Vessels or Eligible Users and set forth in an Order. SeaLogs shall provide to Customer the necessary , security protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Eligible Users to access the SeaLogs Services. Customer shall choose an appropriate password. Customer will permit only Eligible Users to access the SeaLogs Services through the Access Protocols and Customer will be responsible for any such use of the SeaLogs Services using Customer’s Access Protocols. Customer shall notify SeaLogs of any unauthorized use of any Access Protocols, password or account or any other known or suspected breach of security. Customer shall be responsible for all acts and omissions of Eligible Users, and any act or omission by such Eligible Users which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. In the event that Customer wishes to change the ownership of a vessel's logbook, Customer shall request, in writing, SeaLogs to transfer the Customer’s access to the new owner.
2.2 Usage Restrictions. Customer will not: (a) copy, modify or duplicate the SeaLogs Services; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the SeaLogs Services is compiled or interpreted; (c) modify the SeaLogs Services or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of SeaLogs; (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this Agreement; (e) access or use the SeaLogs Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law or regulation; (f) build a similar or competitive product or service to the SeaLogs Services; or (g) damage, interfere with or disrupt the integrity, performance, security or use of the SeaLogs Services.
2.3 Notices. Customer will not conceal, remove or alter any proprietary notice or legend regarding SeaLogs’ proprietary rights in the SeaLogs Services.
2.4 Retained Rights; Ownership. SeaLogs retains all right, title and interest in and to the SeaLogs Services and the Documentation, including all technology, software, methods, and systems and intellectual and proprietary rights embodied therein and Customer acknowledges that neither Customer nor any Eligible User owns nor acquires any rights in and to the foregoing not expressly granted by this Agreement.
2.5 Feedback. SeaLogs in its sole discretion, may utilize, all comments, ideas, error reports and suggestions, whether written or oral, furnished by Customer or its Eligible Users or Administrators to SeaLogs in connection with its access to and use of the SeaLogs Services (all such comments and suggestions provided hereunder constitute, collectively, the “Feedback”) and shall not be considered Confidential Information. Customer hereby grants SeaLogs a worldwide, non-exclusive, irrevocable, perpetual, sub-licensable, assignable, royalty-free right and license to incorporate the Feedback into SeaLogs products and services.
3.1 Professional Services. SeaLogs will provide Customer with reasonable support regarding the access and configuration and use of the SeaLogs Services. If separately agreed in writing by the Parties, SeaLogs may also provide consulting, customization or other professional services with respect to the SeaLogs Services.
3.2 Continuous Development. The Parties acknowledge and agree that SeaLogs may continually develop, deliver and provide to Customer ongoing innovation to the SeaLogs Services in the form of new features, functionality, capabilities and services. Accordingly, SeaLogs reserves the right to modify the SeaLogs Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event SeaLogs adds additional services to the SeaLogs Services, SeaLogs may condition the implementation of such services on Customer’s payment of additional fees.
3.3 Security and Business Continuity. SeaLogs shall employ reasonable measures designed to protect the security of the Customer Data and SeaLogs Services. SeaLogs’ data security program will include reasonable administrative, physical and technical measures against the loss, unavailability, unauthorized access or alteration of Customer Data in the possession or under the control of SeaLogs.
3.4 Continued Access to Customer Data. Customer acknowledges that access to Customer Data may be limited or restricted a) if fees are not paid within the terms of the Agreement, or B) after termination or expiration of the Agreement.
4.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information that the disclosing Party is required to maintain as confidential. As between the Parties, both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party.
4.2 Mutual Confidentiality Obligations. Each Party agrees to employ reasonable safeguards to: (a) use Confidential Information disclosed by the other Party only for the purposes described herein; (b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) not reproduce or create any derivative work from Confidential Information disclosed to such Party by the other Party except as needed to provide the SeaLogs Services; (d) restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) return or destroy, pursuant to Section 8.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
4.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 4.1 and 4.2 will not apply to Confidential Information to the extent it (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (e) is independently developed by the recipient; (f) is approved for release or disclosure by the disclosing Party without restriction; or (g) consists of Aggregate Data or Feedback. Each Party may also disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making any such disclosure, where possible, shall first have given written notice to the other Party in order to allow the other Party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure; or (y) to establish a Party’s rights or enforce obligations under this agreement, but only to the extent that any such disclosure is necessary.
5.1 Mutual Warranty. Each Party hereby represents and warrants that the (a) execution and performance of this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; (b) that the execution and performance of this Agreement will not be in violation of any agreement or obligation of such Party to a third party or in violation of the rights of any third party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
5.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SeaLogs SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY SeaLogs ARE PROVIDED “AS IS,” AND SeaLogs DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. SeaLogs DOES NOT WARRANT THAT THE SeaLogs SERVICES OR ANY OTHER SERVICES PROVIDED BY SeaLogs WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SeaLogs SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. SeaLogs HAS BEEN DESIGNED TO ALIGN TO THE CURRENT MARITIME NEW ZEALAND – MARITIME OPERATOR SAFETY SYSTEM, AND AUSTRALIAN MARITIME SAFETY AUTHORITY – NATIONAL STANDARD FOR COMMERCIAL VESSELS. ALTHOUGH SeaLogs IS NOT COMPLETELY RESPONSIBLE FOR COMPLIANCE WITH, AND MAKES NO REPRESENTATION OR WARRANTY THAT THE SeaLogs SERVICES WILL COMPLY WITH, ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR CUSTOMER’S INDUSTRY. SeaLogs’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SeaLogs IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SeaLogs SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE CUSTOMER DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER IN RELIANCE UPON ANY CUSTOMER DATA.
It is noteworthy that the software mapping display and GPS vessel positioning, is as a guide only and shall not be used as a nautical chart or for any navigational purposes.
6.1 Limitation of Liability. IN NO EVENT WILL SeaLogs BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SeaLogs HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF SeaLogs TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID BY CUSTOMER FOR SeaLogs SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESES LIMITATIONS UPON DAMAGES AND CLAIMS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
6.2 Essential Basis. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 5 and 6 form an essential basis of the agreement between the Parties and that absent such disclaimers, exclusions and limitations of liability, the terms, conditions and payment obligations of this Agreement would be substantially different.
7.3 Process. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification is sought; (b) the indemnifying Party will have control of the defence or settlement; and (c) the indemnified Party will reasonably cooperate with the defence, at the indemnifying Party’s expense.
8.1 Term Trail Policy. When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day You first added Your billing details into the Services. If You choose not to continue using the Services, You may delete Your organisation in “Settings – Account” section of the Services.
8.2 Prepaid Subscriptions. SeaLogs will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription. The term for each Order will commence on the Effective Date of an Order as specified by SeaLogs and will continue for an initial term of one (1) month from the Effective Date, unless earlier terminated in accordance with this Section 8. Unless otherwise specified, each Order will automatically renew for a period of one (1) month at the end of the then-current term unless either Party provides written notice of its desire to terminate at least 3 days prior to the expiration of the then-current term (the initial term and each renewal term are collectively the “Term”). If the Customer provides written notice of its desire to terminate within the 3 days
8.6 Survival. The provisions of Sections 2.4, 2.5, 2.6, 4-7, 8.4, 8.5 and 9 will survive the termination or expiration of this Agreement.
9.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties and, except as specifically provided herein, supersedes and merges all prior agreements between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
9.2 Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
9.3 Amendments; Modifications. We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
9.4 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of SeaLogs. Absent such consent, any attempted assignment or delegation will be null and void. SeaLogs may assign its rights or delegate its duties under this Agreement to any Affiliate.
9.5 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
9.6 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of SeaLogs’ control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
9.7 Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance- based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
9.8 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of New Zealand. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the courts located in New Zealand.
LAST UPDATED: [May 2018]