End User Licence Agreement
Ocean Technologies Group – End User Licence Agreement
(A) Ocean Technologies Group (OTG) is a leading supplier of knowledge and operational software technology services to the maritime, energy and associated sectors.
(B) OTG has engaged a third party, WÄRTSILÄ VOYAGE LIMITED (RESELLER), to act as a reseller of the Ocean Learning Platform.
(C) The CUSTOMER has or shall enter into an agreement with RESELLER for the provision of the Ocean Learning Platform (Reseller Agreement) and the CUSTOMER shall comply with its obligations under the Reseller Agreement, including those relating to timely payment of fees to RESELLER, in addition to its compliance with this End User Licence Agreement (EULA).
(D) Pursuant to the Reseller Agreement, the CUSTOMER is entering into this EULA with OTG, in which OTG shall grant the CUSTOMER a licence to use the Ocean Learning Platform and all associated documentation and content, but excluding any of the RESELLER’s proprietary software that is licensed to the CUSTOMER directly under the Reseller Agreement in accordance with the terms of the EULA.
(E) The CUSTOMER may be granted a licence to Wartsila Cloud Simulation, accessible via the Ocean Learning Platform, by the RESELLER and such licence shall be governed by the terms of the Reseller Agreement or similar arrangement between RESELLER and CUSTOMER and not by this EULA, although CUSTOMER acknowledges that if it loses access to the Ocean Learning Platform in accordance with this EULA, it will also lose access to Wartsila Cloud Simulation.
1 General and definitions
1.1 This EULA governs the CUSTOMER’s use of the Ocean Learning Platform; by using the Ocean Learning Platform, the CUSTOMER accepts the terms and conditions of this EULA in full. CUSTOMER’S terms and conditions shall be of no force and effect and this EULA shall prevail and govern. If there is any inconsistency between any of provisions of this EULA and the Reseller Agreement, the provisions of this EULA shall prevail.
1.2 The following terms shall have the following definitions:
Refers to any text, graphics, audio, visual (including still visual images) and/ or audio-visual material, software, applications, data, database content or other multimedia content, information and material, including the metadata relating to any such content, made available by OTG to the CUSTOMER under this EULA as part of the Ocean Learning Platform, but excluding Wartsila Cloud Simulation.
Refers to the customer set out in the Reseller Agreement.
Refers to any and all documents in any form made available to the CUSTOMER by OTG or RESELLER via or in relation to the Ocean Learning Platform including any user instructions but excluding any documents related to Wartsila Cloud Simulation.
Has the meaning given in clause 6.1.
Refers to patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property or proprietary 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.
OTG’s mandatory policies in place from time to time, available on request.
“Ocean Learning Platform”
Refers to the Ocean Learning Platform framework that facilitates access to any and all services provided or made available by the RESELLER to the CUSTOMER under the Reseller Agreement (excluding any RESELLER proprietary services such as Wartsila Cloud Simulation), and in respect of which OTG grants the CUSTOMER a licence under the terms of this EULA. A reference to the Ocean Learning Platform shall include a reference to Content and Documentation.
“Party” or “Parties”
Refers to either OTG or the CUSTOMER, or the both OTG and the CUSTOMER as applicable.
Refers to any third-party provider of networks, Content, Documentation or services authorised by OTG.
Has the meaning given in clause 4.5.
2 Grant and scope of licence
2.1 In consideration of the CUSTOMER agreeing to abide by the terms and conditions of this EULA and the Reseller Agreement, OTG grants to the CUSTOMER a revocable, non-exclusive, non-transferable, limited licence to use the Ocean Learning Platform for its internal business operations only.
2.2 The licence granted under clause 2.1 permits the maximum users at the sites shown in the Reseller Agreement (including any order form or similar agreed as part of the Reseller Agreement).
2.3 The licence granted under clause 2.1 shall expire on the expiry of termination of the Reseller Agreement, unless otherwise terminated in accordance with this EULA.
2.4 OTG may suspend the Ocean Learning Platform for purposes of repair, maintenance, modifications, improvements, updates or amendments or to install security devices, where OTG considers this necessary.
3 Intellectual Property Rights
3.1 OTG is the owner or licensee of all IP Rights in and to:
3.1.1 the Ocean Learning Platform;
3.1.2 any and all business names and/or domain names associated therewith (whether registered or not); and
3.1.3 all indicia database rights in relation to or in connection with messages, files, data, Ocean Learning Platform.
3.2 CUSTOMER shall acquire no IP Rights in or to the Ocean Learning Platform or otherwise, except as expressly stated in this EULA.
3.3 The CUSTOMER acknowledges that it has no right to have access to the Ocean Learning Platform in source code form.
4 Service Usage
4.1 General:The CUSTOMER shall:
4.1.1 cooperate with OTG in all matters relating to the Ocean Learning Platform;
4.1.2 provide to OTG in a timely manner all documents, information, items and materials in any form (whether owned by the CUSTOMER or third party) required by OTG in connection with the Ocean Learning Platform and ensure that they are accurate and complete;
4.1.3 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable OTG to provide the Ocean Learning Platform;
4.1.4 keep secure and confidential any identification, password and other security credentials used to access the Ocean Learning Platform, including those of all employees accessing the Ocean Learning Platform, and not share, disclose, provide access to, sell or sublicense any such identification, password and other security credentials with or to any third party;
4.1.5 notify OTG immediately of any known or suspected unauthorised use of or access to the Ocean Learning Platform or breach of security, including loss, theft or unauthorised disclosure of its password or other security credentials;
4.1.6 use the Ocean Learning Platform only in conformance with this EULA and all applicable laws and regulations and shall not permit any illegal use or such use that may, in the sole opinion of OTG, bring into disrepute or diminish the value of the Ocean Learning Platform or the reputation of OTG; and
4.1.7 [maintain, operate and safely and securely store the Hardware provided as part of the Ocean Learning Platform. Any modification of the Hardware or use in a manner not intended by OTG, including configuration with any third-party software or hardware, is not permitted.]
4.2 Usage: The Ocean Learning Platform provided by OTG to the CUSTOMER is for the CUSTOMER’s sole use only, and the CUSTOMER shall ensure its employees and any other personnel authorised to use the platform comply with the terms of this EULA. The CUSTOMER shall remain liable and responsible for all acts and omissions of its employees with respect to the Ocean Learning Platform, including for any breach of this EULA.
4.3 Unavailability: The Ocean Learning Platform is provided via transmission channels, which are provided by Service Providers. OTG accepts no responsibility or liability whatsoever in cases of unavailability, delays or otherwise interruption to the Ocean Learning Platform.
4.4 Warranty: OTG makes no warranty, assurance or representation as to: the compatibility of CUSTOMER equipment, including hardware and software, and Ocean Learning Platform; results of the Ocean Learning Platform; the correctness, accuracy or reliability or completeness of the Ocean Learning Platform; or that any information contained in the Ocean Learning Platform is up to date, and the CUSTOMER accepts all risk and liability for their reliance on, review, use and audit of the Ocean Learning Platform and information, data, results and assessments provided through it.
4.5 Unacceptable Use: The CUSTOMER hereby undertakes and warrants that it shall not:
4.5.1 use the Ocean Learning Platform for any purpose other than for the purpose intended by OTG or as otherwise agreed in writing OTG;
4.5.2 post, link to or transmit in connection with the Ocean Learning Platform any material which is unlawful or deemed, in the sole opinion of OTG, to be inappropriate, defamatory, obscene, abusive, an invasive of privacy or otherwise offensive, or any material which infringes or may infringe the IP Rights or proprietary rights of a third party;
4.5.3 copy, publicly disclose or publish any of the Ocean Learning Platform provided by OTG;
4.5.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Ocean Learning Platform available to any third party;
4.5.5 make alterations to, or modification of, the whole or any part of the Ocean Learning Platform, nor permit the Ocean Learning Platform or any part of it to be combined with, or become incorporated in, any other programs;
4.5.6 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Ocean Learning Platform nor attempt to do any such thing;
4.5.7 introduce or permit the introduction of, any virus or vulnerability into OTG’s network and information systems;
4.5.8 directly or indirectly, develop, design, produce, market or sell any services competitive with the Service
(each an “Unacceptable Use”).
5 Specific services
5.1 OTG reserves the right to modify, add or remove Content at any time during the term of this EULA. OTG shall notify the CUSTOMER or RESELLER in writing prior to removing Content where such removal may negatively impact on the Ocean Learning Platform to a material degree.
6 Delivery, shipping AND RETURNS OF HARDWARE
6.1 Hardware: Any hardware or goods provided by OTG to the CUSTOMER pursuant to the Reseller Agreement (“Hardware”) shall remain the property of OTG.
6.2 Delivery charges: For all physical deliveries of Hardware, division of risk and costs are pursuant to the FCA Incoterm (2020). For the avoidance of doubt, all costs resulting from or related to the delivery of the Hardware (during and after delivery) are payable by the CUSTOMER. If OTG manages the dispatch or any part thereof, the costs of and in connection with such dispatch incurred by OTG shall be chargeable to the CUSTOMER’s account.
6.3 Return: Unless stated otherwise in the Service Order, all Hardware shall be returned to OTG within thirty (30) days of termination of the Agreement by the CUSTOMER, at the CUSTOMER’s cost. The CUSTOMER agrees to communicate and share any information on planned, pending, actioned and expected returns. OTG will provide reasonable support in administering the returns.
6.4 Non-Returned Hardware: If the CUSTOMER fails to return any Hardware provided as part of the Ocean Learning Platform, OTG will continue to charge, and the CUSTOMER shall pay for the Services. OTG may also seize and recover possession of Hardware, without demand or notice, wherever the same may be located, without any court order, where OTG retains title and legal rights over such Hardware. The CUSTOMER hereby waives any and all potential claims and liability occasioned by such action. Non-returned Hardware is chargeable to the CUSTOMER at OTG‘s cost of replacing the Hardware.
7 Replacement OF HARDWARE
7.1 Hardware Service Cycle: Subject to the sole determination of OTG, OTG will replace any Hardware:
7.1.1 past the default life cycle;
7.1.2 affected by natural wear and tear; and
7.1.3 otherwise where deemed necessary by OTG.
7.2 Repair / CUSTOMER action: Replacement or repair of Hardware that has been found to have been tampered with or be defective due to improper use by the CUSTOMER will incur a repair charge up to the original value of the relevant Hardware. Defective Hardware is required to be returned to OTG at the service centre specified by OTG. Defective Hardware not returned shall be considered as “Non-Return” and dealt with as per clause 6.4.
7.3 Delivery charges: With respect to this clause 7, any charges related to delivery to and from OTG locations are for the CUSTOMER’s account.
7.4 Data recovery: OTG does not provide data recovery services on defective Hardware (irrespective of fault).
7.5 Support services
7.6 General Support: OTG shall use reasonable endeavours to provide support in respect of the Ocean Learning Platform and services owned and operated by OTG.
8.1 This EULA shall automatically terminate on the expiry or termination of the Reseller Agreement.
8.2 Deactivation of Services: Access to the Ocean Learning Platform shall be deactivated on the termination date of this EULA and all rights granted under this EULA shall cease. Sites that carry hardware services will receive a deactivation file. Upon successful application of deactivation file, deactivated Services have a non-chargeable thirty (30) day return period post termination date. Deactivated Services that have not be returned post return period shall be considered “Non-Return” and dealt with in accordance with clause 6.4 above.
8.3 Survival: All provisions in this EULA regarding indemnification, warranty, liability, and limits thereon, confidentiality and/ or protections of proprietary rights shall survive the termination of this EULA.
8.4 Suspension/Termination by OTG: OTG reserves the right at any time to suspend or terminate this EULA with immediate effect in writing in the event of Unacceptable Use, the CUSTOMER’s material breach of this EULA, or any non-compliance with any of the provisions of clause 15 (Trade and Compliance).
8.5 CUSTOMER Data: OTG reserves the right to gather, store, aggregate, pseudonymise, anonymise, analyse and otherwise use data (including personal data) derived from the CUSTOMER’s and its employees’ use of any Ocean Learning Platform or Documentation for statistical and analytical purposes; monitoring trends; detecting cheating; creating and distributing reports regarding use of such Ocean Learning Platform or Documentation and for product development purposes.
9 Limitations of liability
9.1 Liabilities Which Cannot be Excluded: Nothing in this EULA limits any liability caused by gross negligence, or which cannot legally be limited, including liability for: death or personal injury caused by negligence; and fraud or fraudulent misrepresentation.
9.2 Exclusion of Liability: OTG shall, under no circumstances, be liable for any: indirect or consequential losses; loss of revenue, profit or anticipated profit; loss of use; loss of business; loss of goodwill; business interruption; loss of technology, rights or services; loss, corruption or alteration of, or unauthorized access to information, software, hardware, or data; loss of reputation; increased costs; costs of insurance; or any other similar loss in each case whether direct or indirect and howsoever arising, suffered or claimed by the CUSTOMER.
9.3 Liability Limitation: The aggregate liability of OTG in respect of any and all liability to the CUSTOMER, including but not limited to, liability arising from contract, tort (including negligence), misrepresentation, statutory, restitution or otherwise howsoever arising under or in connection with this EULA and/ or the Ocean Learning Platform shall not exceed 100% of the amount payable to the RESELLER under the Reseller Agreement on an annual basis.
10.1 CUSTOMER Indemnity: The CUSTOMER shall indemnify OTG and hold OTG harmless against any and all liabilities, costs, expenses, damages and losses (including but not limited to, any direct, indirect or consequential losses), and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by OTG arising out of or in connection with any breach, whether under contract, tort (including negligence), breach of statutory duty or otherwise at law, by the CUSTOMER.
11 Force Majeure
11.1 Force Majeure: OTG shall not be liable for any loss, damage, delay or failure to perform under this EULA if OTG is prevented or hindered from performing any or all of their obligations under this EULA due to fire, explosion, labour dispute, earthquake, hurricane, casualty or accident, lack or failure of transportation facilities and/ or services, lack of failure or telecommunications facilities and/ or services including internet services and satellite services, vandalism, epidemic, pandemic, flood, drought, or by reason of national emergency, war, terrorism, revolution, civil commotion, blockade, or embargo, delay from suppliers, Act of God, any inability to obtain any requisite licence, permit or authorization, or by reason of any law, proclamation, regulation, ordinance, demand or requirement of any government or by reason of any other cause whatsoever, whether similar or dissimilar to those enumerated. If the period of delay or non-performance continues for 90 days, OTG shall be entitled to terminate this EULA with immediate effect upon giving written notice to the CUSTOMER of RESELLER.
12.1 Each Party undertakes that it shall not at any time during and after the term of this EULA, disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or IP Rights of the other Party, except as permitted by clause 13.2.
12.2 Each Party may disclose the other Party’s confidential information:
12.2.1 to its employees, officers, representatives, contractors, permitted subcontractors or advisers who need to know such information for the purposes of exercising that Party’s rights or carrying out its obligations under or in connection with this EULA; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No Party shall use any other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this EULA.
13 DATA PROTECTION
13.1 Each Party shall comply with their respective obligations under applicable data protection laws, including the General Data Protection Regulation 2016/679 (GDPR) and any supplementing, replacing or amending legislation, in relation to any personal data that they process under or in connection with this Agreement
13.2 The CUSTOMER acknowledges that OTG shall be a processor (as defined in GDPR) of any personal data collected and processed pursuant to delivering the Ocean Learning Platform and performing its obligations under this Agreement.
14 TRADE AND COMPLIANCE
14.1 The CUSTOMER shall comply with the Mandatory Policies.
14.2 Each Party warrants, represents and undertakes to the other that:
14.2.1 Neither they nor any person or entity or body on whose behalf or under whose direction they act or assist, or who directly or indirectly owns or controls them; nor any person or entity or body who they may nominate to facilitate any aspect of this transaction, are or will be a person or entity designated pursuant to any national, international, or supranational law or regulation imposing trade and economic sanctions, prohibitions or restrictions (a Sanctioned Entity);
14.2.2 Entry into and performance of this EULA is not and will not be prohibited or restricted by, and will not expose the other Party, its managed vessel(s) or its employees to sanctions, prohibitions or restrictions under any national, international or supranational law or regulation imposing trade or economic sanctions, prohibitions or restrictions (a Sanctioned Transaction); and
14.2.3 They shall notify the other Party immediately if it, or any person, entity or body on whose behalf or under whose direction it acts, or who it assists, or who owns or controls them, becomes a Sanctioned entity or if the purchase of goods or services under this EULA becomes a Sanctioned Transaction, and will provide on demand any information the other Party may request.
14.3 In the event of any actual breach of the provisions of this clause, the Party not in breach may terminate this EULA by written notice to the Party in breach and shall have no further liability to the Party in breach.
14.4 The Party in breach of the provisions of this clause shall indemnify the other Party, its manager, and employees on demand against any and all claims, losses, liabilities, damage, costs and fines whatsoever and howsoever arising directly or indirectly as a result of any breach of warranty or undertaking or any misrepresentation by the Party in breach under this clause, whether or not the other Party terminates this EULA.
14.5 No act or omission of either Party shall at any time constitute a waiver of this provision.
15.1 Severability: If a provision of this EULA is determined by any court or other competent authority to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision of this EULA.
15.2 The CUSTOMER may not assign, transfer, mortgage, charge, sub-contract, sub-licence or deal in any other manner with any or all of its rights and obligations under this EULA without the prior written consent of OTG.
15.3 OTG may assign and sub-contract this EULA or any of its rights and obligations hereunder at any time without notice or consent of the CUSTOMER.
15.4 Beneficiaries: Nothing contained in this EULA will be deemed to create any third party beneficiaries or confer any benefit or rights on or to any person not a Party hereto, and any person who is not a Party hereto shall not be entitled to enforce any provisions hereof or exercise any rights hereunder, except that any Service Provider shall be a third party beneficiary to this EULA and may enforce the provisions of this EULA. Neither this EULA, nor the receipt of the Ocean Learning Platform by the CUSTOMER creates a contractual relationship between the CUSTOMER and the Service Providers and the CUSTOMER is not a third-party beneficiary of any agreement between OTG and its Service Providers.
15.5 Notice: All notice or other communications given to a Party under or in connection with this EULA shall be given in writing (including email) and sent to the Party at the address notified in writing to the other Party.
15.6 Updates. OTG may update the terms and conditions of this EULA at any time on notice to the CUSTOMER in accordance with this clause 16.6. The CUSTOMER’S continued use of the Ocean Learning Platform following the deemed receipt and service of the notice under clause 19.5 shall constitute the CUSTOMER’S acceptance of the EULA, as varied. If the CUSTOMER does not wish to accept the terms and conditions of this EULA (as varied), it must immediately stop using and accessing the Ocean Learning Platform on the deemed receipt and service of the notice. Any notice given by OTG to the CUSTOMER in connection with this clause shall be deemed received and properly served 24 hours after it is first posted on OTG’s website, 24 hours after an email is sent, or three days after the date of posting of any letter.
15.7 Entire Agreement Clause: This EULA represents the entire agreement between OTG and the CUSTOMER and shall supersede all prior statements, representations, understanding, discussions and agreements, whether oral or written. The CUSTOMER acknowledges that they have relied on no oral or written representations, statement or undertaking of any kind made by or on behalf of OTG.
16 Governing Law & Jurisdiction
16.1 The governing law of this EULA and any dispute arising out of or in connection with it (including non-contractual disputes) shall be the law of England and Wales.
16.2 Any dispute arising out of or in connection with this EULA, including any question regarding its existence, validity or termination (including non-contractual disputes), shall be referred to and finally resolved by arbitration pursuant to the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. Each party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall act as chair of the tribunal. If either party fails to appoint an arbitrator within 10 days of receiving notice of the appointment of an arbitrator by the other party, such arbitrator shall, at the request of the other party, be appointed by the LCIA. If the two arbitrators appointed in accordance with the above provisions fail to agree upon a third arbitrator within 5 days of the appointment of the second arbitrator, the third arbitrator shall, at the request of either party, be appointed by the LCIA. The seat of the arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
Contact information can be found at Legal – Ocean Technologies Group (oceantg.com)