Legal Policies

TERMS OF SERVICE (UK)

For Client’s Purchasing or using under trial or pilot, Voyage Control Services through Voyage Control Ltd (the UK entity)

Updated 25th April 2018

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING VOYAGE CONTROL

This agreement (together with the documents referred to in it) sets out the terms on which the Client may use the Software either purchased or under trial. Please read this agreement carefully before starting to use the Software. By using the Software, you are confirming, on the Client’s behalf, that the Client accepts the terms and conditions of this agreement and that the Client agrees to comply with it. If the Client does not agree to the terms and conditions of this agreement or you are not authorised to bind the Client, you must not use the Software.

Agreed terms

  1. Interpretation          

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Company: Voyage Control Limited is a company incorporated and registered in England and Wales with company number 06793287 whose registered office is at Stapleton House 110 Clifton St, London EC2A 4HT, United Kingdom.

Client: the person or company contracting with the Company under the terms and conditions of this agreement.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is: (a) clearly labeled as such; (b) identified as Confidential Information; or (c) information that would be regarded as confidential by a reasonable business person.

Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

Customers: the Client’s customers, suppliers and other third parties that require access to the Site(s) for the Purpose.

Effective Date: the date of this agreement.

EULA: the end user licence agreement.

Extended Term: has the meaning given to it in clause 15.1.

Initial Term: has the meaning given to it in clause 15.1.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Legislation: any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.

Purpose: to assist with the logistics and/or freight management at the Site(s).

Services: the services to be provided by the Company to the Client pursuant to the terms and conditions of this agreement.

Site(s): means the site(s) agreed in writing between the parties from time to time.

Software: the Company’s logistics management software provided via cloud-hosted software as a service (SaaS) and the associated documentation relating to it together with any other products and related documentation developed by the Company and which the Company may permit the Client, by express notice in writing, to market pursuant to this agreement.

Subscription Term: together the Initial Term and any Extended Term.

Trademarks: the trademarks and trade names owned by and/or licensed to the Company from time to time.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or in part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

Voyage Control Service: means only the logistics and freight scheduling solution made available by Voyage Control online via the subscriber login link and other associated web pages designated by Voyage Control, including Software, updates to the Software, API’s and any documentation.

Year: the 12-month period following the Effective Date and each succeeding 12-month period.

1.2 Clause headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time.

1.8 A reference to writing or written includes faxes, e-mail, and all digitally recorded text.

1.9 References to clauses are to the clauses of this agreement.

  1. Services

2.1 The Company shall, during the Subscription Term, provide the Services to the Client on and subject to the terms of this agreement.

2.2 The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time. The Company will ensure any maintenance activity is completed if necessary and will advise the client beforehand so there is no disruption to the four (4) month period of use.  

2.3 The Company will, as part of the Services and at no additional cost to the Client, provide the Client with the Company’s standard customer support services (as in effect from time to time). The Company may amend the support services policy in its sole and absolute discretion from time to time. For the avoidance of any doubt, the Company’s standard customer support services do not include support services offered to Customers.

  1. Supply of Software

3.1 The Company hereby grants to the Client a non-exclusive, non-transferable right to use the Software during the Subscription Term solely for the Purpose on and subject to the terms of this agreement.

3.2 During the Subscription Term the Client may grant its Customers the right to access the Software solely to further the Purpose.

3.3 The Company shall, during the Subscription Term, provide such updates or new releases to the Software as such updates or new releases become generally available.

3.4 The Company is entitled to make changes to the Voyage Control Service which do not adversely affect the Software and shall give written notice of such changes to the Client as soon as reasonably practicable.

3.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Company.

3.6 Subject to clause 3.7, the rights provided under this clause 3 are granted to the Client in relation to the Site(s) only, and, in the absence of express written consent, shall not be considered granted to any other site, subsidiary or holding company of the Client.

3.7 The Client may, at its election transfer its right to use the Software in relation to one or more Site(s) to another site by providing at least 30 days written notice to the Company.

  1. The Client’s obligations and undertakings

4.1 The Client undertakes that it shall not, and shall procure that its employees, consultants, agents and subcontractors shall not:

(a) during the term of this agreement, distribute or create any products which compete with the Software;

(b) at any time (including after the termination or expiry of this agreement howsoever arising), other than as expressly permitted by clause 3.2, distribute the Software;

(c) at any time (including after the termination or expiry of this agreement howsoever arising), except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

(d) except as expressly set out in clause 3:

(i) use the Software to provide services to third parties; or

(ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party, or

(iii) attempt to obtain, or assist third parties in obtaining, access to the Software.

4.2 The Client shall not, and shall procure that its employees, consultants, agents and subcontractors shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and the Company reserves the right, without liability or prejudice to its other rights to the Client or its Customers, to disable the Client’s and/or the Customer’s access to the Software if the Company reasonably believes there has been (or might be) a breach of the provisions of this clause.

4.3 The Client undertakes and agrees with the Company to:

(a) ensure that its Customers are aware of and accept the terms and conditions of the EULA, the Company’s Privacy Policy and Cookie Policy and any other policies that the Company requires before using the Software;

(b) refrain from amending or varying the terms of the EULA;

(c) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Client’s obligations under this agreement;

(d) within 14 days of a written request from the Company at any time, and from time to time, provide such information as is reasonably requested by the Company about the Client’s processes and controls to support compliance with this agreement;

(e) upon request provide the Company with such information about its Customers as is reasonably required by the Company for the purposes of managing and enforcing the terms of the EULA with such customers; and

(f) inform the Company immediately of any changes in ownership or Control of the Client and of any change in its organisation or method of doing business which might affect the performance of the Client’s duties in this agreement.

4.4 For the duration of the Subscription Term, the Client hereby grants the Company the irrevocable right to conclude the EULA and bind the Client to the relevant terms of the EULA.

  1. The Company’s obligations and undertakings

The Company undertakes:

(a) to provide such information and support as may be reasonably requested by the Client to enable it properly and efficiently to discharge its duties under this agreement; and

(b) to approve or reject any promotional information or material submitted by the Client within 14 days of receipt.

  1. Prices and payment

6.1 The fees for the Services shall be calculated in accordance with the methodology as agreed in writing between the Company and the Client.

6.2 Any and all expenses, costs and charges incurred by the Client in the performance of its obligations under this agreement shall be paid by the Client unless the Company has expressly agreed beforehand in writing to pay such expenses, costs and charges.

6.3 For annual contracts, the Company will invoice the Client annually. The Company will invoice the client in advance of the Effective Date and thereafter in advance of each Year in accordance with the terms of this clause 6. For singular events, the Company will send an invoice before use of the platform occurs, which must be paid within 30 days of receiving the invoice.

6.4 The Client shall pay the full amount invoiced to it by the Company in relevant currency within 30 days of the date of invoice but no later than the Effective date or the first day of the Year thereafter.

6.5 All amounts due under this agreement shall be paid by the Client to the Company in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.6 The Client shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Software.

6.7 If the Client fails to make any payment due to the Company under this agreement by the due date for payment, then, without limiting the Company’s remedies under clause 15:

(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and

(b) the Company shall be entitled to suspend access to the Software without any liability.

  1. Advertising, promotion and Trademarks

7.1 The Client shall not use the Company’s Trademarks unless and until it has obtained the Company’s prior written consent. The Client shall in any event:

(a) observe all reasonable directions and instructions given to it by the Company in relation to the promotion and advertisement of the Software to the extent that such promotions or advertisements refer to the Software or otherwise use the Trademarks;

(b) conduct its business in a manner that reflects favourably at all times on the Company; and

(c) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to the Company, the Software or the public.

  1. Anti-bribery

8.1 Each party shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act of 2010.

8.2 The Client shall ensure that any person associated with the Client who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Client in this agreement (“Relevant Terms”). The Client shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Company for any breach by such persons of any of the Relevant Terms howsoever arising.

8.3 Breach of this clause 8 shall be deemed a material breach, which is irremediable, under clause 15.2(a).

  1. Intellectual Property Rights

9.1 All Intellectual Property Rights in and to the Software and the Trademarks belong, and shall belong, to the Company and/or its licensors.

9.2 The Client shall, at the expense of the Company, take all such steps as the Company may reasonably require to assist the Company in maintaining the validity and enforceability of the Intellectual Property Rights of the Company during the term of this agreement.

9.3 The Client shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Company and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

9.4 Other than the licences expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Client shall have no rights in respect of any trade names or trademarks used by the Company in relation to the Software or their associated goodwill, and the Client hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, the Company. To the extent that any goodwill associated with the Trademarks or the Software accrues to the Client, the Client hereby immediately assigns to the Company with full title guarantee all such goodwill.

9.5 At the request of the Company, the Client shall do or procure to be done all such further acts and things (including the execution of documents) as the Company shall reasonably require to give the Company the full benefit of this clause 9.

9.6 The Client shall promptly give notice in writing to the Company in the event that it becomes aware of:

(a) any infringement or suspected infringement of the Trademarks or any other Intellectual Property Rights in or relating to the Software; and

(b) any claim that any Software or the use, sale or other disposal of any Software, whether or not under the Trade Marks, infringes the rights of any third party.

9.7 In the case of any matter falling within clause 9.6(a):

(a) the Company shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter; and

(b) the Company shall have sole control over and shall conduct any consequent action as it shall deem necessary; and

(c) the Company shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action;

9.8 In the case of any matter falling within clause 9.6(b):

(a) the Company and the Client shall consult to decide what steps shall be taken to prevent or terminate the infringement and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded in their favour or against them; and

(b) failing agreement between the parties, either party shall be entitled to take all action as it shall consider to be necessary or appropriate at its own expense to defend such a claim and shall be entitled and subject to all damages and other sums which may be recovered or awarded against it as a result of any such action,

the foregoing states the Client’s sole and exclusive rights and remedies, and the Company’s entire obligations and liability, in the case of any matter falling under clause 9.6(b).

9.9 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.

  1. CO-BRANDING

10.1 Subject to the terms and conditions of this agreement, the Company hereby grants to the Client a non-exclusive, revocable, non-transferable licence to use the Trademarks on the landing webpages that are controlled by the Client.

10.2 The Client shall describe any landing webpages that are controlled by the Client as “Powered by Voyage Control” but shall not represent itself as an agent of the Company for any purpose, nor pledge the Company’s credit or give any condition or warranty or make any representation on the Company’s behalf or commit the Company to any contracts. Further, the Client shall not without the Company’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Software which are inconsistent with those contained in the promotional material supplied by the Company (including, without limitation, the EULA) or otherwise incur any liability on behalf of the Company howsoever arising.

10.3 The Client shall ensure that each reference to, and use of, any of the Trademarks by the Client is in a manner approved from time to time by the Company and accompanied by an acknowledgement in a form approved by the Company that the same is a Trademark (or registered Trademark) of the Company.

10.4 The Client shall not:

(a) use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of the Company;

(b) use in relation to the Software any Trademarks other than the Trademarks without obtaining the prior written consent of the Company; or

(c) use any Trademarks or trade names so resembling any Trademark or trade names of the Company as to be likely to cause confusion or deception.

  1. Confidentiality

11.1 Each party may have access to Confidential Information of the other party under this agreement.  A party’s Confidential Information shall not include information that:

(a) is or becomes publicly known through no act or omission of the receiving party; or

(b) was in the other party’s lawful possession prior to the disclosure; or

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

11.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4 This clause 11 shall survive termination of this agreement for any reason.

  1. Protection and processing of personal data

12.1 Each party shall comply with its respective obligations under the provisions of the General Data Protection Regulation 2018 (the “Regulation”) and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.

12.2 Where a party or any of its sub-contractors, as part of the fulfilment of its obligations under this agreement, processes personal data as a data processor on behalf of the other party acting as a data controller:

(a) that party shall, and shall procure that its sub-contractors shall:

(i) act only on instructions from the other party when processing personal data provided to it under this agreement, and keep records of all such processing;

(ii) comply with the other party’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by the other party;

(iii) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;

(iv) not transfer any personal data outside the European Union without the other party’s prior written consent; and

(v) immediately notify the other party if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this agreement, provide full cooperation and assistance in relation to any such complaint, notice or communication.

(b) the other party may from time to time serve on the processing party an information notice requiring that party, within such time and in such form as is specified in the information notice, to give to the other party such information as the other party may reasonably require relating to:

(i) compliance by the processing party or by its sub-contractors with its obligations to the other party under this agreement in connection with the processing of personal data; and

(ii) the rights of data subjects, including but not limited to subject access rights;

(c) the processing party shall provide to the other party on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by the other party, and shall promptly inform the other party if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The processing party will restore such data at its own expense.

  1. Warranties and indemnity

13.1 Each party represents, warrants and undertakes that:

(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and

(b) it shall comply with all applicable Legislation in the performance of its obligations under this agreement.

13.2 The Company warrants to the Client that the Software licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features of the Voyage Control Service.

13.3 The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:

(a) the Client’s breach or negligent performance or non-performance of this agreement;

(b) any claim made against the Company by a third party for death, personal injury or damage to property, to the extent that such claims are arise out of or relate to the acts or omissions of the Client, its employees, agents, subcontractors or Customers.

13.4 Liability under this indemnity is conditional on the Company discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against the Company which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), the Company shall:

(a) as soon as reasonably practicable, give written notice of the Claim to the Client, specifying the nature of the Claim in reasonable detail;

(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Client (such consent not to be unreasonably conditioned, withheld or delayed); and

(c) subject to the Client providing security to the Company to the Company’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Client may reasonably request to avoid, dispute, compromise or defend the Claim.

  1. Limitation of liability

14.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

(a) any breach of this agreement howsoever arising; and

(b) any representation, misrepresentation (whether innocent or negligent) statement or tortious act or omission (including without limitation negligence) arising under or in connection with this agreement.

14.2 Except as expressly and specifically provided in this agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.

14.3 Nothing in this agreement excludes the liability of the Company:

(a) for death or personal injury caused by the Company’s negligence; or

(b) for fraud or fraudulent misrepresentation.

14.4 Subject to clause 14.3, the Company shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:

(a) loss of profits; or

(b) loss of business; or

(c) depletion of goodwill or similar losses; or

(d) loss of anticipated savings; or

(e) loss of goods; or

(f) loss of use; or

(g) loss or corruption of data or information; or

(h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

14.5 The Company’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement including any appropriate risk management steps taken by the client should the system not work during the required period,  shall in all circumstances be limited to the amount actually paid by the Client to the Company under this agreement in the 12 months preceding the date on which the claim arose.

  1. Term and termination

15.1 This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 15.2 or clause 15.3 or this clause, this agreement shall continue for one (1) Event (Initial Term”) and the Client shall notify the Company (“Extended Term”) at the end of the Initial Term of its requirements to an Extended Term or additional requirements to use the system on a year-round basis. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

15.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment; or

(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or

(c) the other party is unable to pay its debts as they fall due, admits inability to pay its debts, is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent to similar to any of the events mentioned in this clause 15.2(c).

15.3 The client may at its election terminate its right to use the Software (but not this agreement) in relation to one or more Site(s) by providing at least 30 days written notice to the Company.  The Client shall not incur any fees or charges after termination of its right to use the Software in relation to one or more Site(s).

15.4 Without prejudice to any other rights or remedies to which the Company may be entitled, the Company may terminate the agreement without liability to the Client if:

(a) there is a change of control of the Client; or

(b) the Client challenges or disputes the validity of any of the Company’s Intellectual Property Rights; or

(c) the Client purports to assign any of its rights or obligations under this agreement.

  1. Effects of termination

16.1 Upon termination or expiry of this agreement for any reason:

(a) the Client shall (at its sole cost) return (or at the Company’s option, destroy) all media on which the Software are held and the Client shall stop combining the Software with the Client Services;

(b) the Client shall promptly return to the Company, or otherwise dispose of as the Company may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Client and relating to the Company’s business (other than correspondence which has passed between the parties) which the Client may have in its possession or under its control; and

(c) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

16.2 Subject to the foregoing provisions of this clause 16.1, all rights and licences of the Client under this agreement shall terminate.

16.3 The termination of this agreement shall not of itself give rise to any liability on the part of the Company to pay any compensation to the Client for loss of profits or goodwill, to reimburse the Client for any costs relating to or resulting from such termination, or for any other loss or damage.

  1. Force majeure

Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Client or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.

  1. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. Severance

19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

19.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

  1. Entire agreement

20.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

20.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

  1. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Assignment

22.1 The Client shall not, without the prior written consent of the Company, assign, mortgage, charge, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement.

22.2 The Company may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

  1. No partnership or agency

23.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

  1. Third party rights

No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

  1. Rights and remedies

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Notices

26.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by fax to its main fax number; or

(c) sent by email to:

(i) info@voyagecontrol.com, in the case of the Company; and

(ii) in the case of the Client, the email address provided to the Client during registration.

26.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;

(c) if sent by fax, at 9.00 am on the next Business Day after transmission;

(d) if sent by email, at the time the notice is sent, provided that the sender did not receive a delivery failure notification.

26.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  1. Governing law

This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.

  1. Jurisdiction

The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).

TERMS OF SERVICE (US)

For Client’s Purchasing or using under trial or pilot, Voyage Control Services through Voyage Control Inc. (the US entity)

Updated 25th April 2018

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING VOYAGE CONTROL

This agreement (together with the documents referred to in it) sets out the terms on which the Client may use the Software either purchased or under trial. Please read this agreement carefully before starting to use the Software. By using the Software, you are confirming, on the Client’s behalf, that the Client accepts the terms and conditions of this agreement and that the Client agrees to comply with it. If the Client does not agree to the terms and conditions of this agreement or you are not authorized to bind the Client, you must not use the Software.

This License and Services Agreement (this “Agreement”) is made and entered into as of _____, 2018 (the “Effective Date”) by and between Voyage Control Inc., a Delaware corporation (“Voyage Control”), and a [STATE OF INCORPORATION] [TYPE OF ENTITY] (“Client”).  Voyage Control and Client are referred to in this Agreement each as a “Party” and collectively as the “Parties.”

WHEREAS, Voyage Control provides certain logistics and freight scheduling services, and the Client desires to engage Voyage Control to provide those services to the Client in accordance with the provisions of this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

1.             Definitions

Business Day: a day other than a Saturday, Sunday or federal holiday in the United States.

Client Data: any data about the Client or its Customers, employees or activities, which is provided to Voyage Control by or on behalf of the Client or is otherwise obtained by Voyage Control from the Client’s systems, operations, Customer databases and contact relationship databases.

Confidential Information: information that is proprietary or confidential and is: (a) clearly labelled as such; (b) identified as Confidential Information; or (c) information that would be regarded as confidential by a reasonable business person.

Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and “controls,” “controlled” and the expression “change of control” shall be construed accordingly.

Customers: the Client’s customers, suppliers and other third parties that require access to the Site(s) for the Purpose.

EULA: the end user license agreement, as it may be updated from time to time, the current form of which is attached hereto as Exhibit A.

Intellectual Property Rights: means (a) patents, inventions, and discoveries; (b) trademarks, service marks, domain names, social media user names, trade dress and trade names, including the goodwill connected with the use thereof and symbolized thereby (“Trademarks”); (c) copyrights, moral rights, works of authorship (including software), proprietary designs, and rights in data and databases; (d) confidential and proprietary information, including trade secrets and invention rights; (e) rights of privacy and publicity; (f) registrations and applications for any of the foregoing in (a)-(e); and (g) all other proprietary rights.

Law(s): means any law, rule, regulation, ruling, judgment, order, or approval of any governmental authority, as may be revised from time to time.

Purpose: to assist with the logistics and/or freight management at the Site(s).

Services: the services to be provided by Voyage Control to the Client pursuant to the terms of this agreement, including the Voyage Control Service.

Site(s): means the site(s) set forth in Schedule 1, and any other Sites that may be agreed to in writing by the Parties from time to time.

Software: Voyage Control’s logistics management software provided via cloud-hosted software as a service (SaaS) and the associated documentation relating to it together with any other products and related documentation developed by Voyage Control and which Voyage Control may permit the Client, by express notice in writing, to market pursuant to this agreement.

Subscription Term: collectively, the Initial Term and any Extended Term.

Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

Voyage Control Service: means only the logistics and freight scheduling solution made available by Voyage Control online via the subscriber login link at https://www.voyagecontrol.com and other associated web pages designated by Voyage Control, including Software, updates to the Software, APIs and any documentation.

Voyage Control Trademarks: VOYAGE CONTROL and any other Trademarks set forth in Schedule 1, as that Schedule may be updated from time to time by Voyage Control in its sole discretion.

Year: the 12-month period following the Effective Date and each succeeding 12-month period.

2.             Supply of Services

2.1          Access to the Services. Subject to the terms of this agreement, Voyage Control hereby grants to the Client a non-exclusive, non-transferable right to access and use the Software during the Subscription Term solely for the Purpose. During the Subscription Term, the Client may grant its Customers the right to access the Software solely to further the Purpose. The Client may, at its election, transfer its right to use the Software in relation to one or more Site(s) to another site by providing at least 30 days written notice to Voyage Control. From time to time, platform modifications may be undertaken via agreement between parties, which may or may not attract additional cost.

2.2          Updates to Software. Voyage Control shall, during the Subscription Term, provide such updates or new releases to the Software as such updates or new releases become generally available. Voyage Control is entitled to make changes to the Voyage Control Service which do not adversely affect the Software and shall give written notice of any material changes to the Client as soon as reasonably practicable.

2.3          Reservation of Rights. The Client acknowledges that it is only granted access to the Software for the Purpose during the Subscription Term in accordance with Section 2.1 and shall not use the Software except as permitted thereunder. Voyage Control reserves all right, title and interest to the Service and any Intellectual Property Rights therein and thereto, except for the rights expressly granted to the Client herein.

2.4          Restrictions on Use. The Client shall use commercially reasonable efforts to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Voyage Control. The Client shall only use the Services in relation to the Site(s), and, in the absence of express written consent, shall not use the Services with any other site, subsidiary or holding company of the Client. Except to the extent expressly stated otherwise in this Agreement, the Client shall not nor attempt to, nor permit, procure, enable or request any other person to  (a) alter, adapt, reproduce, modify, create derivative works based on, reverse engineer, decompile, reverse compile, reverse assemble, translate or disassemble all or any portion of the Services; (b) use the Services to (i) create, market or distribute any product or service that is competitive with the Services, or (ii) act as a service bureau on behalf of, or otherwise provide processing or services support to, any person;  (c) transfer, sell, lease, license, sublicense, distribute, disclose, divulge or make available the Services to, or permit use of or access to the Services by, any person; (d) remove, alter or obscure any intellectual property notice or other restrictive notice or legend contained or included in or on any materials related to the Services; or (e) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; or is discriminatory based on race, gender, color, religious belief, sexual orientation, or disability. Voyage Control reserves the right, without liability or prejudice to its other rights, to disable the Client’s and the Customers’ access to the Services if Voyage Control reasonably believes there has been (or might be) a breach of the provisions of this Section.

3.             Access to Services

3.1          Voyage Control shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out during the maintenance window as notified to clients, except that the Services will not be considered unavailable if and to the extent the unavailability results from (a) maintenance that is critical and cannot be delayed, (b) any use of the Services by the Client or Customers that is inconsistent with the terms of this Agreement, (c) any fault in or failure of the Client’s or Customers’ IT systems, electrical supplies or systems or access to the Internet, or (d) the Client’s or Customers’ failure to comply with any of its obligations under this Agreement or their obligations under a EULA.

3.2          Voyage Control will, as part of the Services and at no additional cost to the Client, provide the Client with Voyage Control’s standard customer support services (as in effect from time to time). Voyage Control may amend the support services policy in its sole discretion from time to time. The Client acknowledges Voyage Control’s standard customer support services do not include support services for or to Customers.

4.             Responsibilities of the Client

4.1          The Client shall:

(a)            ensure that its Customers are aware of and accept the terms and conditions of the EULA, Voyage Control’s Data Retention Policy and Cookie Policy and any other policies that Voyage Control requires before using the Software;

(b)            not amend or modify the terms of the EULA;

(c)            employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Client’s obligations under this agreement;

(d)            within 14 days of a written request from Voyage Control provide such information as is reasonably requested by Voyage Control about the Client’s processes and controls to support compliance with this agreement;

(e)            upon request provide Voyage Control with such information about its Customers as is reasonably required by Voyage Control for the purposes of managing and enforcing the terms of the EULA with such customers; and

(f)             inform Voyage Control immediately of any changes in ownership or Control of the Client and of any change in its organization or method of doing business which might affect the performance of the Client’s duties in this agreement.

4.2          The Client acknowledges that access to the Software and the Service is dependent upon the Client’s and its Customers’ acceptance of and adherence to the terms of the EULA, and a breach of the EULA by the Client or a Customer will be deemed to be a breach of this agreement by the Client.

4.3          The Client shall (a) obtain and maintain all necessary licenses, consents and permissions necessary for Voyage Control to collect and make use of the Client Data for the purpose of providing the Services; and (b) ensure that its network and systems comply with the relevant specifications provided by Voyage Control from time to time and will be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Voyage Control’s data centers.

5.             Prices and Payment

5.1          Payment of Fees. In consideration for the access granted to the Services and the supply of the Software to the Client by Voyage Control, the Client shall pay the fees as set forth in Schedule 1. Except as otherwise set forth in Schedule, 1all fees must be paid in U.S. dollars and are not subject to any deductions, credits or other set-offs. Any amounts not paid by the Client within 30 days of the date of invoice are subject to interest of the lesser of 1.5% per month or the highest rate permitted by Laws. In the event of nonpayment of any amounts due within 30 days of the date of invoice, Voyage Control may suspend or terminate the Client’s access to the Services at its sole discretion.

5.2          Taxes. All charges and fees provided for in this agree­ment are exclusive of any taxes, duties, or similar charges imposed by any government. The Client will pay or reimburse Voyage Control for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this agreement or the transactions contemplated by this agreement (other than taxes on the net income of Voyage Control).

6.             Co-Branding

6.1          Trademark License and Usage Guidelines. Subject to the terms of this agreement, Voyage Control hereby grants to the Client a non-exclusive, revocable, non-transferable, non-sublicensable license to use the Voyage Control Trademarks on the landing webpages that are controlled by the Client. The Client shall describe any landing webpages that are controlled by the Client as “Powered by Voyage Control” but shall not represent itself as an agent of Voyage Control for any purpose, nor pledge Voyage Control’s credit or give any condition or warranty or make any representation on Voyage Control’s behalf or commit Voyage Control to any contracts. Further, the Client shall not without Voyage Control’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Software which are inconsistent with those contained in the promotional material supplied by Voyage Control (including, without limitation, the EULA) or otherwise incur any liability on behalf of Voyage Control howsoever arising. The Client shall ensure that each reference to, and use of, any of the Voyage Control Trademarks by the Client is in a manner approved from time to time by Voyage Control and accompanied by an acknowledgement in a form approved by Voyage Control that the same is a Trademark (or registered trademark) of Voyage Control. Voyage Control will approve or reject any promotional information or material submitted by the Client within 14 days following receipt thereof.

6.2          Use of Voyage Control Trademarks. In exercising its rights under this agreement, the Client agrees to: (a) observe all reasonable directions and instructions given to it by Voyage Control in relation to the promotion and advertisement of the Software to the extent that such promotions or advertisements refer to the Software or otherwise use the Voyage Control Trademarks; (b) to conduct its business in a manner that reflects favorably at all times on Voyage Control; and (c) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Voyage Control, the Software or the public. Except as expressly provided in this Agreement, the Client shall have no rights in respect of any Trademarks used by Voyage Control in relation to the Software or their associated goodwill, and the Client hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Voyage Control. To the extent that any goodwill associated with the Voyage Control Trademarks or the Software accrues to the Client, the Client hereby immediately assigns to Voyage Control all such goodwill.

6.3          Restrictions. The Client shall not: (a) use any of the Voyage Control Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of Voyage Control; (b) use any other Trademark with the Software (other than the Client’s Trademarks) without obtaining the prior written consent of Voyage Control, except that the Client shall not use its Trademarks and the Voyage Control Trademarks so as to form a composite mark; or (c) use any Trademarks confusingly similar to or dilutive of any Voyage Control Trademark.

7.             Intellectual Property Rights

7.1          Intellectual Property Ownership. As between the Parties, all Intellectual Property Rights in and to the Services and the Voyage Control Trademarks belong, and shall belong, to Voyage Control.

7.2          Further Assurances. The Client shall, at the expense of Voyage Control, take all such steps as Voyage Control may reasonably require to assist Voyage Control in maintaining the validity and enforceability of the Intellectual Property Rights of Voyage Control during the term of this agreement. At the request of Voyage Control, the Client shall do or procure to be done all such further acts and things (including the execution of documents) as Voyage Control shall reasonably require to give Voyage Control the full benefit of this Article 7.

7.3          Enforcement of Intellectual Property Rights. The Client shall promptly give notice in writing to Voyage Control in the event that Client becomes aware of any infringement or suspected infringement of Voyage Control Trademarks or any other Intellectual Property Rights in or relating to the Software or any claim that any Software or the use, sale or other disposal of any Software, whether or not under the Voyage Control Trademarks, infringes the rights of any third party. In the event of infringement or suspected infringement of the Voyage Control Trademarks or any other Intellectual Property Rights in or relating to the Software, Voyage Control reserves the right to determine in its sole discretion and at its sole expense the action to be taken.

8.             Confidentiality  

8.1          Each Party may have access to Confidential Information of the other Party under this agreement. A Party’s Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the other Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or (e) is required to be disclosed by Law, by any court of competent jurisdiction or by any regulatory or administrative body. Each party shall hold the other’s Confidential Information in confidence and, unless required by Law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement. Each Party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed in violation of the terms of this Agreement. This Article 8 shall survive termination of this agreement for any reason.

8.2          Notwithstanding any other provision of this agreement, Voyage Control may (a) monitor use of the Services to (i) determine Client’s compliance with the terms of this agreement and (ii) provide support and other requested Services, (b) utilize any Client Data on a confidential basis in connection with Voyage Control’s development of any products, strategies or services, (c) anonymize and/or de-identify any Client information and data and aggregate that information and data with other information and data for any further use or purpose (including for distribution to the public), and (d) use any information gathered by Voyage Control in connection with providing the Services as is necessary to comply with Laws.

8.3           Voyage Control may (a) issue a press release or other public announcement concerning the Services and other arrangements contemplated by this Agreement, subject to the Client’s prior approval, which the Client may not unreasonably withhold or delay, and (b) identify the Client as a customer of Voyage Control in marketing materials (including on the Voyage Control website).

9.             Representations and Warranties

9.1          Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licenses referred to in this agreement; (b) that this agreement is executed by its duly authorized representative and represents a binding commitment on it; and (c) it shall comply with all applicable Laws in the performance of its obligations under this agreement.

9.2          Voyage Control Representations and Warranties. Voyage Control represents and warrants to the Client that the Software licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features of the Voyage Control Service.

9.3          Client Representations and Warranties. Client represents and warrants to Voyage Control that the Client has all rights, permissions and licenses necessary to submit and have the Customers’ submit) the Client Data to the Software and for Voyage Control to use the Client Data in accordance with the terms of this Agreement.

9.4          DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 9.1, 9.2 AND 9.3, THE SERVICES ARE PROVIDED “AS IS” AND VOYAGE CONTROL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND VOYAGE CONTROL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, (a) VOYAGE CONTROL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE; AND (b) VOYAGE CONTROL DISCLAIMS ALL LIABILITY ARISING FROM OR RELATING TO LOSS OR CORRUPTION OF DATA OR DECISIONS MADE BY CLIENT OR ANY CUSTOMER BASED ON USE OF THE SERVICES.

10.          Indemnification  

10.1      By the Client. The Client shall indemnify, defend and hold harmless Voyage Control, its affiliates, and its and their directors, officers, employees and agents from and against all damages, expenses (including attorneys’ fees and court costs), losses, liabilities, obligations, claims, demands, suits, actions, investigations, proceedings and causes of action (“Losses”), as incurred, to the extent arising out of or in connection with any third-party claim arising out of or in connection with: (a) the Client’s gross negligence or willful misconduct; (b) death, personal injury or damage to property caused by the Client or Customers, or its or their personnel; (c) the Client’s or a Customer’s access to or use of the Software or Services not in accordance with this agreement; (d) Voyage Control’s use of any Client Data in accordance with this agreement; or (d) a Client IP Claim.

10.2      Indemnification by Voyage Control. Subject to Section 10.3, Voyage Control shall indemnify, defend and hold harmless the Client from and against all Losses arising out of or in connection with any third-party claim that the Services as provided by Voyage Control to the Client infringe the Intellectual Property Rights of that third party (each, an “IP Claim”). The Client acknowledges that this Section states Voyage Control’s entire responsibility and liability and the Client’s sole and exclusive remedy for any actual or alleged infringement of third-party Intellectual Property Rights in connection with this Agreement.

10.3      Exclusions. Voyage Control has no obligation to indemnify or defend the Client for any IP Claim to the extent it arises out of or relates to (a) the Client’s or Customers’ use of the Software or Services in combination with materials, software, Intellectual Property Rights or services not furnished or approved by Voyage Control, where there would be no basis for the IP Claim but for the combination, (b) any breach of this agreement by the Client or breach of a EULA by a Customer, (c) the Client’s or a Customers’ improvement, modification or enhancement of, or creation of any derivative work based on, the Software or Services, or (d) the Client’s or a Customers’ failure to implement a work-around, release, update or other modification to or for the Software or Services as provided or directed by Voyage Control.

10.4      Mitigation. In the defense, settlement or avoidance of any IP Claim, and in addition to but not in lieu of any other obligation set forth in this Article, Voyage Control may, at its option and its expense, (a) replace or modify any infringing Software or Services with non-infringing items and/or services, (b) obtain a license for the Client to continue using and receiving any of the infringing Software or Services, or (c) if Voyage Control determines in its good-faith business judgment, after using commercially reasonable efforts, that the remedies set forth in clauses (a) and (b) are not available on commercially reasonable terms, the Client shall stop using and return to Voyage Control all allegedly infringing materials, Voyage Control may stop performing all allegedly infringing Services reimburse the Client for any amounts paid by the Client with respect to such Services to the extent such Services have not yet been provided.

10.5      Procedure. Each Party (the “Indemnified Party”) shall give the other Party (the “Indemnitor”) prompt notice of any demand by the Indemnified Party for indemnification under this Article (a “Claim”), as well as copies of any papers served on the Indemnified Party relating to that Claim, but the Indemnified Party’s failure to provide or delay in providing that notice or those copies will not release the Indemnitor from its obligations under this Article, except to the extent the failure or delay materially prejudices the Indemnitor. The Indemnitor has the exclusive right to conduct the defense of any Claim and any negotiations for its settlement, except that (a) the Indemnitor may not bind the Indemnified Party to any agreement, payment, settlement or obligation, or otherwise prejudice or impair the Indemnified Party’s rights, without the Indemnified Party’s prior written consent, which the Indemnified Party may not unreasonably withhold or delay, and (b) the Indemnified Party (i) shall assist the Indemnitor in its defense of any Claim, at the Indemnitor’s request and expense, (ii) may participate at its expense in the Indemnitor’s defense of or settlement negotiations for any Claim with counsel of the Indemnified Party’s own selection, and (iii) may, at its option and the Indemnitor’s expense, and on notice to the Indemnitor, conduct the defense of and any settlement negotiations for any Claim in place of the Indemnitor if the Indemnitor fails to promptly defend the Claim as required in this Article. Notwithstanding anything to the contrary in this Agreement, the Indemnitor may not settle any claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless such settlement (A) includes an unconditional release of the Indemnified Party from all liability in any way related to or arising out of such claim and (B) does not impose any actual or potential liability upon, or contain any factual or legal admission by or with respect to, the Indemnified Party. At the Indemnified Party’s request and the Indemnitor’s expense, and in addition to the Indemnitor’s other obligations under this Agreement, the Indemnitor shall assist the Indemnified Party with the defense of any Claim for which the Indemnified Party conducts the defense under this Section.

11.          Limitation of liability

11.1      TO THE FULLEST EXTENT PERMITTED BY LAW:

(a)            IN NO EVENT WILL EITHER PARTY’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OTHER THAN WITH RESPECT TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO THE COMPANY DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(b)            WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS AND CLAIMS RELATED TO OR ARISING OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER (THE “EXCEPTION CONDITIONS”), IN NO EVENT WILL EITHER PARTY’S COLLECTIVE AGGREGATE LIABILITY EXCEED ONE (1) TIMES THE TOTAL AMOUNT OF LICENSE FEES PAID OR PAYABLE TO THE COMPANY DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (LESS ANY IMPLEMENTATION COSTS).

(c)            [EXCEPT WITH RESPECT TO THE EXCEPTION CONDITIONS,] IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING LOST PROFITS), INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2      THE LIMITATIONS CONTAINED IN THIS ARTICLE 11: (a) WILL NOT LIMIT THE LIABILITY OF THE CLIENT WITH RESPECT TO FEES PAYABLE TO VOYAGE CONTROL UNDER THIS AGREEMENT AND (b) APPLY EVEN IF THE CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12.          Term and Termination

12.1      Term. This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this Section, this agreement shall continue for one (1) Year (“Initial Term”) and shall automatically extend for 12-monthly periods (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either Party may give written notice to the other Party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be. To the extent it would apply, the Parties hereby expressly waive and shall waive application of Section 5-903 of the New York General Obligations Law.

12.2      Termination by Either Party. Without affecting any other right or remedy available to it, either Party may terminate this agreement with immediate effect by giving written notice to the other Party if:

(a)            the other Party fails to pay any amount due under this agreement on the due date for payment;

(b)            the other Party commits a material breach of any term of this Agreement and fails to remedy that breach within a period of 14 days after being notified in writing to do so; or

(c)            (i) the other Party commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor Laws; (ii) anyone commences an involuntary case against such other Party under title 11 of the United States Code or the corresponding provisions of any successor Laws and either (A) the case is not dismissed by midnight at the end of the 45th Business Day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) a court of competent jurisdiction appoints, or such other Party makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor Laws) for such other Party or all or substantially all of its assets; or (iv) such other Party fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

12.3      Termination of Sites. The Client may at its election terminate its right to use the Software (but not this agreement) in relation to one or more Site(s) by providing at least 30 days’ written notice to Voyage Control. The Client shall not incur any fees or charges after termination of its right to use the Software in relation to one or more Site(s).

12.4      Termination by Voyage Control. Without prejudice to any other rights or remedies to which Voyage Control may be entitled, Voyage Control may terminate the agreement without liability to the Client if: (a) there is a change of control of the Client; (b) the Client challenges or disputes the validity of any of Voyage Control’s Intellectual Property Rights; or (c) the Client purports to assign any of its rights or obligations under this agreement.

13.          Effects of Termination

13.1      Upon any termination of this agreement all rights and licenses of the Client under this agreement terminate and the Client shall (at its sole cost): (a) return (or at Voyage Control’s option, destroy) all media on which the Software are held and the Client shall stop accessing and using the Software; and (b) promptly return to Voyage Control, or otherwise dispose of as Voyage Control may instruct, all samples, technical pamphlets, catalogs, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Client and relating to Voyage Control’s business (other than correspondence which has passed between the Parties) which the Client may have in its possession or under its control. A client will be granted a five (5) working day period to download and/or export any data from the platform.

13.2      Sections 2.3, and 2.4and Articles 1, 7, 8, 9, 10, 11, 13 and 14 survive any termination of this Agreement.

14.          Miscellaneous

14.1      Interpretation. The descriptive headings in this Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.”  “Sole discretion” means, with respect to any determination to be made under this Agreement by a Party, the sole and absolute discretion of that Party, without regard to any standard of reasonableness or other standard by which the determination of that Party might be challenged. “Commercially reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person desirous of achieving a result would use in similar circumstances to perform that obligation as promptly as possible consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable immaterial expenditures or liabilities. Unless stated otherwise, all references to a date or time of day in this Agreement are references to that date or time of day in New York, New York. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

14.2      Assignment. Neither this agreement nor any rights under this agreement may be assigned or otherwise transferred by the Client, in whole or in part, whether voluntary or by operation of Law, including by way of sale of assets, merger or consolidation, without the prior written consent of Voyage Control. Voyage Control may assign this agreement at any time without consent of the Client. \Subject to the foregoing, this agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of this Section is void.

14.3      No Presumption. The Parties acknowledge that the provisions of this Agreement are the language the Parties chose to express their mutual intent and hereby waive any remedy and the applicability of any Law that would require interpretation of any claimed ambiguity, omission or conflict in this Agreement against the Party that drafted it.

14.4      Third-Party Beneficiaries. Except to the extent stated otherwise in this Agreement, nothing in this Agreement confers any legal or equitable right, benefit or remedy upon any person other than the Parties.

14.5      Limitation on Claims. No action arising out of any breach or claimed breach of this agreement or transactions contemplated by this agreement may be brought by either Party more than one year after the cause of action has accrued. For purposes of this agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.

14.6      Force Majeure. Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this agreement if such delay or failure is caused, in whole or in part, by events, occur­rences, or causes beyond the control and without negligence of the parties.  Such events, occur­ren­­ces, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

14.7      Waiver. Any waiver of the provisions of this agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under this agreement and will not in any way affect the validity of the whole or any part of this agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this agreement will preclude the enforcement by such Party of any other right or remedy under this agreement or that such Party is entitled by Law to enforce.

14.8      Severability. If a governmental authority of competent jurisdiction holds any provision of this Agreement to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, all other provisions of this Agreement are to remain in effect as written, except that this entire Agreement will be unenforceable if modifying or disregarding the unenforceable provision affects the economic and legal substance of the transactions contemplated by this Agreement in a manner materially adverse to either Party.

14.9      Integration. This Agreement con­tains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.  If a provision in a Schedule conflicts with any other provision in this Agreement, the provision of the applicable Schedule governs to the extent of the conflict.

14.10    Governing Law. This Agreement (including this Section), any dispute, claim or controversy among the Parties arising out of or relating to this Agreement, and the Parties’ rights and obligations under this Agreement (each, a “Dispute”), are to be construed in accordance with and governed by the Laws of the State of New York applicable to agreements made and to be wholly performed in that state by persons residing or having their principal places of business therein, without giving effect to the State of New York’s conflict of laws rules to the extent those rules would require applying another jurisdiction’s Laws. The Parties exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. The Parties may commence an action, suit or proceeding arising out of or relating to this Agreement only in, and hereby consent to the exclusive jurisdiction of, the federal and state courts located in the County of New York within the State of New York. Each Party (i) acknowledges that any Dispute is likely to involve complicated and difficult issues, and (ii) hereby irrevocably and unconditionally waives any right it may have to a trial by jury in connection with this Agreement. Voyage Control reserves the right to participate in mediation and/or other forms of alternative dispute resolution.

14.11   Notice. All notices, requests, claims and other communications between the Parties described in or otherwise regarding this Agreement must be in writing and be given or made (and will be effective on receipt) by delivery in person, by nationally recognized overnight courier service (with signature required and all fees prepaid), by facsimile (with confirmation of transmission) or by e-mail (except that any facsimile or e-mail received after 5:00 p.m. at the location of receipt will be deemed received on the immediately following Business Day), or by registered or certified mail (postage prepaid, return receipt requested) to a Party at its address in Schedule 1 or at any other address of which that Party has notified the other Party in accordance with this Section.

[signature page follows]

            The Parties have caused this License and Services Agreement to be executed by their respective duly authorized representatives.

VOYAGE CONTROL INC. [CLIENT]
By__________________________________ By_________________________________
Name: Name:
Title: Title:

SCHEDULE 1

 

Customer Name:
Contact Name:
Address:
Effective Date:

 

  1. Site(s):

Voyage Control will provide the Services in accordance with the Agreement for sites as specified in the proposal documents and any subsequent documentation between parties.

  1. Subscription Fee: As specified in the proposal documents and/or other contract documentation.
  1. Payment. The first annual payment is due and payable in full upon the Effective Date; each subsequent payment is due prior to the anniversary of the Effective Date (and in any event within 30 days of invoice by Voyage Control).
  1. Increase in Fees. Voyage Control may increase the fees for any Extended Term by providing written notice to the Client at least 120 days prior to the commencement of that Extended Term, and this Schedule will be deemed amended without further action by the Parties to reflect those increased fees.
  1. Voyage Control Trademarks:

 

For the period of the license, we grant a non-transferable right to the client to use Voyage Control Trademarks as necessary (to be agreed upon prior to use).

EXHIBIT A

END USER LICENSE AGREEMENT SHARED IN A SEPARATE DOCUMENT.

END USER LICENSE AGREEMENT

Updated 25th April 2018

If you do not agree to the terms of this agreement, please refrain from using the Platform.

By using and/or registering to use the Platform, you must read, agree with and accept all of the terms and conditions contained in this agreement. This agreement is provided to you and concluded in English. You agree that any use by you of the Platform shall constitute your acceptance of this agreement. Voyage Control recommends that you store or print a copy of this agreement (including all policies) for your records.

This end user license agreement (this “agreement”) (together with the documents referred to in it) is a legal agreement between you and Voyage Control Limited incorporated and registered in England and Wales with company number 06793287 and whose registered office is at Stapleton House 110 Clifton St, London EC2A 4HT, United Kingdom (VAT Number: 974509192) (“Voyage Control”) for the use of the Platform (as defined below). For the purposes of clauses 11 to 13 (inclusive) only, you also agree to contract with the Client.

1. Interpretation

1.1 The following definitions shall apply in this agreement:

Acceptable Use Restrictions: has the meaning given to it in clause 5.1.

Cookie Policy: Voyage Control’s cookie policy is available on another section of this webpage, which sets out information about the online cookies used by Voyage Control.

Customers: the Client’s customers, suppliers and other third parties that require access to the Site(s).

Client: the owner and/or operator of the Site(s) that has separately contracted with Voyage Control (or a partner of Voyage Control) for the use of the Platform.

Licence Restrictions: has the meaning given to it in clause 4.1.

Platform: Voyage Control’s logistics management software platform.

Data Retention Policy: Voyage Control’s data retention policy available on another section of this page, which sets out the terms on which Voyage Control processes any personal data Voyage Control collect from you, or that you provide to Voyage Control.

Site(s): means the site(s) owned and/or operated by the Client and which form part of a separate agreement between Voyage Control and the Client.

Subscription Term: the duration of the separate agreement between the Client and Voyage Control for the use of the Platform.

1.2 Clause headings shall not affect the interpretation of this agreement.

1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to laws in general is a reference to all local, national and directly applicable supra-national laws as amended, extended or reenacted from time to time and shall include all subordinate laws made from time to time under them and all orders, notices, codes of practice and guidance made under them.

1.7 Unless otherwise specified, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision and all orders, notices, codes of practice and guidance made under it.

1.8 A reference to writing or written includes e-mail and all digitally recorded text.

1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person.

1.10 Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Applicable terms

2.1 This agreement refers to the following additional terms, which also apply to your use of the Platform:

(a) Voyage Control’s Data Retention Policy; and

(b) Voyage Control’s Cookie Policy.

2.2 If you subscribe for any of Voyage Control’s other services you will also have to agree to the terms that govern the service you have subscribed for.

3. Licence

Subject to your compliance with the terms and conditions of this agreement, Voyage Control hereby grants you a non-exclusive, non-transferable licence to use the Platform during the Subscription Term solely for use as part of the Client’s internal business operations. Voyage Control reserves all other rights.

4. Licence restrictions

4.1 Except as expressly set out in this agreement or as permitted by any local law, you agree:

(a) to use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Voyage Control;

(b) not to copy the Platform except where such copying is incidental to normal use, or where it is necessary for the purpose of back-up or operational security;

(c) not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this agreement, to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;

(d) not to access all or any part of the Platform in order to build a product or service which competes with the Platform;

(e) not to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party;

(f) not to attempt to obtain, or assist third parties in obtaining, access to the Platform;

(g) to include Voyage Control’s copyright notice on all entire and partial copies you make of the Platform on any medium;

(h) not to provide or otherwise make available the Platform in whole or in part (including object and source code), in any form to any person without prior written consent from Voyage Control; and

(i) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Platform,

(together the “Licence Restrictions”).

4.2 You warrant to Voyage Control that all the information you provide to Voyage Control is true and accurate to the best of your knowledge.

5. Acceptable use restrictions

5.1 You must:

(a) not use the Platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Platform or any operating system;

(b) not infringe Voyage Control’s intellectual property rights or those of any third party in relation to your use of the Platform (to the extent that such use is not licensed by this agreement);

(c) not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Platform;

(d) not use the Platform in a way that could damage, disable, overburden, impair or compromise Voyage Control’s systems or security or interfere with other users; and

(e) not collect or harvest any information or data from the Platform or Voyage Control’s systems or attempt to decipher any transmissions to or from the servers running the Platform,

(together the “Acceptable Use Restrictions”).

6. Accessing the Platform

6.1 Access to the Platform is permitted on a temporary basis and Voyage Control reserves the right to withdraw or amend the services Voyage Control provide on the Platform without notice.  Voyage Control will not be liable under this agreement if for any reason the Platform is unavailable at any time or for any period.  For the avoidance of any doubt, this clause 6 is without prejudice to any service levels that have been separately agreed between the Client and Voyage Control.

6.2 From time to time, Voyage Control may restrict access to some functionality or parts of the Platform, or the entire the Platform, to users.

6.3 If you choose, or you are provided with, a user identification code, password or any other piece of information as part of Voyage Control’s security procedures, you must treat such information as confidential, and you must not disclose it to any third party. Voyage Control has the right to disable any user identification code or password, whether chosen by you or allocated by Voyage Control, at any time, if in Voyage Control’s sole opinion you have failed to comply with any of the provisions of this agreement.

6.4 You must not misuse the Platform by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. You must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack.

6.5 If you breach clause 6.4, you will be committing a criminal offence under the Computer Misuse Act 1990. Voyage Control will report any such breach to the relevant law enforcement authorities and Voyage Control will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, Voyage Control reserves the right to immediately cease your right to use the Platform.

6.6 By using the Platform, you consent to Voyage Control collecting and using technical information about your devices and related software, hardware and peripherals to improve Voyage Control’s Platform and to provide any services to you.

7. Third party providers

The Platform may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under Voyage Control’s control, and Voyage Control is not responsible for and does not endorse their content or their privacy policies (if any). You will need to make your own independent judgment regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.

8. Eligibility

8.1 To be eligible to use the Platform, you must:

(a) be at least 18 years old;

(b) by a duly authorised employee, agent or consultant of the Client or a Customer; and

(c) agree to the terms and conditions of this agreement.

8.2 You represent and warrant to Voyage Control that you are authorised by the Client to use the Platform.

9. Indemnity

You hereby agree to indemnify defend and hold harmless Voyage Control, its subsidiaries, successors, assignees, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, liabilities, obligations, damages, losses, expenses, and costs, (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Voyage Control arising out of or in connection with:

(a) your breach or negligent performance of this agreement; or

(b) the enforcement of this agreement.

10. Intellectual property rights

10.1 Voyage Control is the owner or the licensee of all intellectual property rights in the Platform, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.  Except as expressly stated herein, this agreement does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform.

10.2 You acknowledge that you have no right to have access to the Platform in source-code form.

10.3 The trade marks, service marks, and logos (“Trade Marks”) contained on the Platform are owned by Voyage Control, its group companies or third party partners of Voyage Control. You cannot use, copy, edit, vary, reproduce, publish, display, distribute, store, transmit, commercially exploit or disseminate the Trade Marks without the prior written consent of Voyage Control, the relevant group company or the relevant third party partner of Voyage Control.

10.4 Our status (and that of any identified contributors) as the authors of content on the Platform must always be acknowledged.

10.5 If you print off, copy or download any part of the Platform in breach of this agreement, your right to use the Platform will cease immediately and you must, at Voyage Control’s option, return or destroy any copies of the materials you have made.

10.6 The views expressed by other users on the Platform do not represent Voyage Control’s views or values.

11. Access to the Site(s)

11.1 Voyage Control merely provides access to the Platform.  You acknowledge and agree that the right to enter the Site(s), all health and safety measure and all other procedures are the solely a matter between you and the Client.

11.2 For the purposes of this agreement, but subject always to the Client’s instructions, the Client is deemed to have granted you a limited, non-transferable, revocable licence to access the Site(s) solely for the purpose of the performance by you of your logistics and/or freight tasks.  You acknowledge and agree that the Client may, in its sole and absolute discretion, revoke your right to access the Site(s) at any time.

12. Suspension of the Platform

Voyage Control or the Client may, it its absolute discretion, suspend your access to the Platform if it reasonably believes you have breached (or believes you are likely to breach) the terms of this agreement.

13. The Client’s liability

You acknowledge and agree that, to the extent any liability arises out of or in connection with any matter other than access to the Platform, your sole right to claim remedies will be against the Client and/or any other third party and not Voyage Control.

14. Changes to these terms

Voyage Control may revise this agreement at any time by notifying you of a change when you next use the Platform.  The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Platform.

15. No warranty

15.1 Use of the Platform is at your own risk.  The Platform is provided on an “as is” basis. Voyage Control does not warrant or guarantee that the Platform and all or part of its contents will be always available or that its use will not be interrupted.

15.2 You acknowledge that the Platform may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this agreement.

15.3 You acknowledge that the data and other content available on the platform may not be correct and Voyage Control makes no such guarantee.

16. Voyage Control’s liability

16.1 You acknowledge that the Platform has not been developed to meet your individual requirements.

16.2 Voyage Control accepts no liability for any loss arising out of or in connection with matters outside of its control.

16.3 Voyage Control has no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

16.4 Voyage Control is only responsible for loss or damage you suffer that is a foreseeable result of Voyage Control’s breach of this agreement or Voyage Control’s negligence up to the limit specified in clause 13.5, but Voyage Control is not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of Voyage Control’s breach or if they were contemplated by you and Voyage Control at the time Voyage Control granted you the agreement.

16.5 Our maximum aggregate liability under or in connection with this agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £100. This does not apply to the types of loss set out in clause 16.6.

16.6 Nothing in this agreement shall limit or exclude Voyage Control’s liability for:

(a) death or personal injury resulting from Voyage Control’s negligence;

(b) fraud or fraudulent misrepresentation; and

(c) any other liability that cannot be excluded or limited by English law.

16.7 To the extent permitted by law, Voyage Control excludes all conditions, warranties, representations or other terms which may apply to the Platform or any content on it, whether express or implied.

17. Termination and cancellation

17.1 Voyage Control may terminate this agreement immediately by written notice to you:

(a) if you commit a material or persistent breach of this agreement which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or

(b) if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.

17.2 On termination for any reason:

(a) all rights granted to you under this agreement shall cease; and

(b) you must immediately cease all activities authorised by this agreement, including your use of the Platform and certify to Voyage Control that you have done so.

17.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

18. Transfer of rights and obligations

18.1 This agreement is binding on you and Voyage Control and on Voyage Control’s respective successors and assignees.  For the purposes of clauses 11 to 13 (inclusive) this agreement is also binding on you, the Client and Voyage Control (and its respective successors and assignees).

18.2 You may not transfer, assign, charge or otherwise dispose of this agreement, or any of your rights or obligations arising under it, without Voyage Control’s prior written consent.

21. Severance

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

20. Waiver

Subject to clause 14, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. Variation

18.4 For the purposes of clauses 11 to 13 (inclusive), the Client may not transfer, assign, charge or otherwise dispose of this agreement, or any of your rights or obligations arising under it, without Voyage Control’s prior written consent.

18.3 Voyage Control may assign, charge, novate or otherwise dispose of this agreement without your prior written consent.

21.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23. Communications

Voyage Control is required to provide certain information to you in writing. By accepting this agreement, you agree that Voyage Control can communicate with you electronically either by email or by posting notices on the Platform.

24. Entire Agreement

This agreement and any document expressly referred to in it constitutes the whole agreement between Voyage Control and supersedes any previous discussions, correspondence, arrangements or understandings between Voyage Control.

25. Governing law and jurisdiction

25.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

25.2 Any dispute or claim arising out of or in connection with this agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.

26. Contact Voyage Control

To contact Voyage Control, please email info@voyagecontrol.com

COOKIE POLICY

Updated 25th April 2018

Voyage Control uses cookies to distinguish you from other users of our Platform (as defined in the End User License Agreement, referred to as the EULA). This helps us to provide you with a good experience when you browse our website and also allows us to improve our Platform. By continuing to browse the site, you are agreeing to our use of cookies.

A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer if you agree. Cookies contain information that is transferred to your computer’s hard drive.

We use the following cookies:

Strictly necessary cookies. These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytical/performance cookies. They allow us to recognize and count the number of visitors and to see how visitors move around our Platform when they are using it. This helps us to improve the way our Platform works, for example, by ensuring that users are finding what they are looking for easily.

Functionality cookies. These are used to recognize you when you return to our Platform. This enables us to personalize our content for you, greet you by name and remember your preferences (for example, your choice of language or region).

Targeting cookies. These cookies record your visit to our Platform, the pages you have visited and the links you have followed. We will use this information to make our Platform and the information displayed on it more relevant to your interests. We may also share this information with third parties for this purpose.

You may block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) you may not be able to access all or parts of our site.

DATA RETENTION POLICY

Updated 25th April 2018

Protecting your data is very important to Voyage Control Limited (“Voyage Control”, “us” or “we”).

This policy together with our EULA and any other agreement between you and us sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by Voyage Control.

Information we may collect about you

We may collect and process the following data about you:

  • information that you provide us with (by filling in forms on Voyage Control’s logistics management platform (the “Website”) or otherwise). This includes information you provide at the time of registering or at any subsequent point and includes, by way of example, your name, email address, registration number, password, etc.;
  • information that you provide to the Site (as defined in the End User License Agreement, referred to as the EULA) and that the Site shares with us;
  • if you contact us, we may keep a record of that correspondence;
  • we may also ask you to complete surveys that we use for research purposes, although you do not have to respond to them (nor will we share your answers without your express permission);
  • device-specific information (such as your hardware model, operating system version, unique device identifiers, and mobile network information);
  • your location;
  • details of your visits to the Website;

We will hold the above information for as long as is necessary in order to provide you with our services, deal with any specific issues that you may raise or otherwise as is required by law or any relevant regulatory body.

Information we may collect about others

We may collect and process the following data about others that you provide us with, including (but not limited to) information that you provide by filling in forms on the Website and information submitted via the Platform (as defined in the EULA). You represent and warrant to us that you have obtained the express consent from the individuals whose data you provide us with. We don’t use your data for marketing purposes, nor do we sell it to 3rd party providers. We have legitimate interests in obtaining this data and need it to provide our services.

For the avoidance of any doubt, any reference in this privacy policy to your data shall include data about other individuals that you have provided us with.

IP Addresses

We may collect information about your computer, including where available your IP address, operating system and browser type, for system administration. This is statistical information about our users’ browsing actions and patterns and does not identify any specific individual.

Cookies

Voyage Control uses cookies to distinguish you from other users. This helps us provide you with a good experience when you use the Website and also allows us to improve our services. Please note that it is possible to disable cookies being stored on your computer by changing your browser settings. However, the Website may not perform properly or some features may not be available to you if you disable cookies.

For detailed information on the cookies we use and the purposes for which we use them see our Cookie policy in another section on this webpage.

Where we store your personal information

The data we collect from you is stored in the USA/EU/AU/CAN but may be transferred to and stored in regional servers around the world but may be transferred to other locations if required. It may also be processed by staff operating outside your company’s region. By submitting your personal data, you agree to this transfer, storing and processing.

Your passwords are stored on Voyage Control’s servers in encrypted form. We do not disclose your account details, postal, email addresses, or any other information we collect, to anyone except when legally required to do so.

Sensitive information between your browser and the Website is transferred in encrypted form using Secure Socket Layer (“SSL”). When transmitting sensitive information, you should always make sure that your browser can validate the Voyage Control certificate.

It is your responsibility to keep your password secure. Unfortunately, the transmission of information via the internet is not completely secure. Although Voyage Control will do its best to protect your personal data, we cannot guarantee the security of your data transmitted to the Website, any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try and prevent any unauthorized access.

How we use your information

We use information held about you (and information about others) in the following ways:

  • to provide you with our services;
  • to ensure you receive information relevant to you;
  • to improve our processes and service delivery;
  • to ensure the content on the Website is presented in the most effective manner for you and your computer or mobile device; and
  • to notify you about changes to our service.

Disclosure of your information

We will disclose your personal information to the Site owner (as defined in the EULA), a partner of Voyage Control and/or a member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries, as defined in section 1159 of the UK Companies Act 2006.

We may disclose your personal information to third parties:

  • to provide you with our services;
  • in the event that we sell or buy any business or assets;
  • if you request we do so (including to members);
  • if Voyage Control or substantially all of its assets are acquired by a third party; or
  • if we are under a duty to disclose or share your personal data in order to comply with any legal obligation or to protect the rights, property, or safety of Voyage Control, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection.

Your rights

You have the right to ask us not to process your personal data by contacting us at info@voyagecontrol.com

The General Data Protection Regulation 2018 gives you the right to access information held about you by submitting a request in accordance with the regulation. All such requests should be sent to info@voyagecontrol.com

Changes to this policy

Any changes we make to our privacy policy in the future will be posted on this page, and where appropriate, notified to you by email.

Contact

Questions, comments and requests regarding this privacy policy are welcome and should be addressed to info@voyagecontrol.com