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 11th November 2021

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 thirdparty 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 workaround, 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 noninfringing 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 email 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__________________________________ Name: __________________________________ Title: __________________________________

By_________________________________ Name: __________________________________ 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.

2. 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).

2. 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.

3. 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.

 

Contact us at info@voyagecontrol.com if you have questions about any of our legal policies.