Schedule 1
Customer Agreement

THIS CUSTOMER AGREEMENT is made between:
This Customer Agreement is entered into between the Kaiko entity (“Provider”) and the customer legal entity (“Customer”) named in the order form signed by the Customer and the Provider, (“Order Form”).‍1 Parties to this Customer Agreement
1.1 The provisions of this agreement between the Provider and the Customer (“Customer Agreement”) shall apply solely between the Provider and the Customer, who are the parties to this Customer Agreement, (the “Parties” and each a “Party”).
1.2 Upon signature of this Customer Agreement by the Manager on behalf of and as the representative of the Customer, this Customer Agreement shall come into effect between the Provider and each Customer individually. The rights and obligations set out in this Customer Agreement apply only between the Customer and the Provider.‍2 Subject of this Customer Agreement
2.1 The subject of this Customer Agreement is the provision of software applications (“Kaiko Inspection Software”) made available by the Provider for use by the Customer in return for payment of a fee. The right to use the Kaiko Inspection Software includes the functionalities, the technical enabling of access to use the Kaiko Inspection Software as well as the granting of a license permitting the Customer to use the Kaiko Inspection Software as well as online storage of data generated by the Customer through use of the Kaiko Inspection Software and/or the data required for use of the Kaiko Inspection Software (“Application Data”).
2.2 The Customer may only use the Kaiko Inspection Software for the ships designated in Appendix 1 of the Order Form.
2.3 The Kaiko Inspection Software includes a responsive web app for a ship-side mobile client as well as a cloud-based dashboard for a shore-side desktop client. By capturing information with the Kaiko Inspection Software, data is automatically synchronized with the cloud. This allows the land crew to monitor all information captured in the Kaiko Inspection Software in a dashboard.
2.4 The Customer and the Provider agree that the Kaiko Inspection Software made available under this Customer Agreement to the Customer shall consist exclusively of the following functions:
2.4.1 Responsive web app functions for ship-side mobile client;
2.4.2 structured list of sections, components, and inspection procedures;
2.4.3 setup of the inspection procedures based on GA & Safety Plans provided by the Customer and set up as a service by the Provider;
2.4.4 data collection interface to take pictures and work through checklists;
2.4.5 rating of specific criteria based on user judgement;
2.4.6 marking of findings, observations, deficiencies and occurrences of insufficient condition as per user judgement;
2.4.7 data compression and transmission, communication to the cloud;
2.4.8 resolving of previously marked findings by taking a new picture and providing a new rating;
2.4.9 collection of meta-data of inspection procedures, such as time spent and approximate distance walked (as per hardware device sensor).2.5 The following Cloud-based Dashboard functions for shore-side desktop client:
2.5.1 access to data transmitted from mobile client;
2.5.2 access to history of inspection procedures (previous ratings, pictures, findings etc.);
2.5.3 access to inspection procedure analytics;
2.5.4 access to interaction features between shore and on board, e.g.: changing the rating of a component from OK to Not OK or change its numerical rating in the dashboard;
2.5.5 User & permission management.
2.6 The Customer understands that the Kaiko Inspection Software is only a supportive communication and organization tool. The Customer is responsible for ensuring that the inspection procedures, which are set up in accordance with the Customer's instructions, meet the Customer’s actual requirements. Ratings provided by the Kaiko Inspection Software are approximate and for support purposes only and are not a substitute for the Customer's own professional and comprehensive inspection of the condition of a ship. The Customer acknowledges and agrees that a reliable rating of individual damage or the undamaged condition of a ship does not form part of this Customer Agreement and the Provider explicitly excludes and shall have no liability whatsoever for such matters under this Customer Agreement.‍3 Provision of Kaiko Inspection Software
3.1 The Provider shall grant the Customer separate access to the Kaiko Inspection Software for each natural person who will use the Kaiko Inspection Software. To set up the accounts, the Customer shall provide the Provider with an email address for each individual for whom an account is to be set up (“User”). The Customer shall define to what extent each User shall have access to the Kaiko Inspection Software.
3.2 The access to the Kaiko Inspection Software is provided via a central server hosted by Scaleway SAS (“Server”), in the then-current version.
3.3 Access is set up without a password. For access, the Provider sends a 6-digit token to the User's e-mail address at the request of the User. The User can then log into the Kaiko Inspection Software with this personal token. The token can only be used once. When logging in using the token, a session is created by setting a cookie (in the case of the web application) or a random token (in the case of the mobile app application), during which the User has access to the Kaiko Inspection Software within the level of user rights to which the User is entitled. After the session ends (e.g., by deleting the cookie or logging in again on a different device), the User must log in again.
3.4 Authentication of a User is performed exclusively by the User's email address provided by the Customer. In addition, the authorization of which content and each individual User who has access to content, is also based on the email account of the respective User. Since each User is represented by an email account, the Provider assumes that the person who has access to the email is the authorized User. It is the sole responsibility of the Customer to ensure that only the designated persons have access to the email account communicated to the Provider. For this purpose, every User of the Customer must keep the access data for its email account secret, protect it from access by third parties and not pass it on to unauthorized users. The Customer shall take appropriate and industry standard technical measures to protect User access data and passwords. The Customer shall inform the Provider without delay if it suspects or becomes aware that any access data and/or passwords may or have become known to unauthorized persons.
3.5 The Provider may, in its sole discretion, modify the way in which the Kaiko Inspection Software is provided as described in clause 3.3, as long as the modification does not result in any significant deterioration in the services provided to the Customer. In the event of such a change, the Customer must reasonably cooperate with any new security requirements or instructions for using the Kaiko Inspection Software (e.g. safekeeping of the password or PIN).
3.6 The Kaiko Inspection Software and the Application Data it contains are backed up regularly on the Server, however, the Customer shall be responsible for also making their own regular backups.
3.7 The Customer is responsible for complying with all commercial, tax and other legally required retention periods applicable to the Customer in relation to the services provided under this Customer Agreement.
3.8 The transfer point for the Kaiko Inspection Software and the application data is the router exit of the Provider's data center, (“Transfer Point”)
3.9 The Customer is solely responsible for all hardware and software used for the Internet connection between the Customer and the Provider up to the Transfer Point. To use the Kaiko Inspection Software and mobile web app a User needs a smartphone and WLAN availability on the ship. Minimum hardware requirements are Android devices running Android 9 or later Android versions or Apple devices running iOS 13 or later. For use on Android devices, Chrome 80 or a later version browser must be used.‍4 Technical availability of the Kaiko Inspection Software
4.1 The Provider is responsible for the availability of the Kaiko Inspection Software and the Application Data at the Transfer Point, (“Availability”) in accordance with the Terms and Conditions. Availability means providing the Customer with technical access to use the Kaiko Inspection Software and the Application Data at the Transfer Point during the term of the Customer Agreement.‍5 Rights to use of the Kaiko Inspection Software
5.1 The Provider and/or its licensors and subcontractors, are and remain the sole and exclusive owners of all rights and title in and to the Kaiko Inspection Software and the user manuals, documentation, and other documents relating to the Kaiko Inspection Software and any intellectual property rights contained therein, save to the extent these incorporate any Customer data or third-party-owned item, (“Provider Materials”). No interest or ownership in the Provider Materials is transferred to the Customer under this Customer Agreement.5.2 Subject to payment of all fees owed under this Customer Agreement, the Provider grants the Customer a non-exclusive, non-transferable, worldwide, revocable right to use the Provider Materials for the term of this Customer Agreement subject to the provisions of this Customer Agreement.5.3 There is no physical transfer of the Provider Materials to the Customer. The Customer may only use the Provider Materials for its own business activities by its own personnel.5.4 The Customer is only allowed to use the Provider Materials for specific ships, as described in clause 2.2 of this Customer Agreement.5.5 The license granted in clause 5.2 above permits the Customer to make cache copies of software or other information necessary for the Customer to receive the Kaiko Inspection Software via the Internet. The Customer has no right to modify, adapt, translate the Kaiko Inspection Software or create derivative works from the Provider Materials. No additional implied rights are granted beyond those specifically mentioned in this clause.5.6 Notwithstanding the Customer’s statutory rights, nothing in this Customer Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain the source code for the software comprised within the Provider Materials and disassembly, decompilation, reverse engineering, and other source code derivation of the software comprised within the Provider Materials is prohibited.5.7 Unless otherwise specified in this Customer Agreement, the Provider Materials are provided and may only be used by the Customer and Users.5.8 The Customer may not, except as expressly permitted in this Customer Agreement:
5.8.1 Lease, loan, resell, assign, license, distribute, or otherwise permit access to the Provider Materials; or
5.8.2 Use the Provider Materials to provide ancillary services related to the Provider Materials; or
5.8.3 Permit access to or use of the Provider Materials by or on behalf of any third-party.5.9 If the Provider makes new versions, updates, upgrades, or provides the Customer with new functionality with regard to the Kaiko Inspection Software during the term of this Customer Agreement, the above rights also apply to these.5.10 The Customer shall not be entitled to any rights not expressly granted to the Customer above.5.11 The Provider may suspend access to the Provider Materials and Application Data, or a portion thereof, at any time if, in the Provider’s sole reasonable discretion, the integrity or security of the Kaiko Inspection Software or Application Data is in danger of being compromised by the acts of the Customer or its Users. The Provider shall, where possible, give the Customer 24 hours written notice before suspending access to the Kaiko Inspection Software and Application Data, giving specific details of its reasons.‍6 Obligations of the Customer for safe use
6.1 The Customer shall take the necessary precautions to prevent the use of the Kaiko Inspection Software by unauthorized persons; details are agreed in clause 3.4 of this Customer Agreement.
6.2 The Customer is liable for ensuring that the Kaiko Inspection Software is not used for racist, discriminatory, pornographic, youth protection endangering, politically extreme or otherwise illegal purposes or purposes that violate official regulations or requirements, or that corresponding data, in particular application data, is not created and/or stored on the Server.
6.3 The Customer shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of all data imported or uploaded into the Kaiko Inspection Software.‍7 Breach of clauses 6.1, 6.2 or 6.3 by Customer
7.1 If the Customer or its Users breach the provisions of clauses 6.1, 6.2 or 6.3, the Provider is entitled to partially block the Customer's access to the Kaiko Inspection Software or the Application Data if the breach can be demonstrably remedied by this.
7.2 If the Customer continues to breach or repeatedly breaches these provisions despite receiving a written warning from the Provider, the Provider can immediately terminate this Customer Agreement without penalty upon giving written notice to the Customer.‍8 Liability for third-party rights
8.1 The Provider shall immediately inform the Customer of any rights of third parties or of the assertion of such rights and of any resulting impairment of the provision of the Provider Materials and shall enable the Customer to have full access to the Application Data in a suitable manner.
8.2 Open Source: The Provider incorporates certain open source products in the Provider Materials. Such open source software used does not contain any modifications of the type which would entail the disclosure of confidential or proprietary information of the Customer, triggered by the respective open source license terms and the Provider confirms that it complies with the terms of the open source licenses. The Provider does not warrant that the relevant open source products themselves do not infringe any third-party rights.
8.3 The Provider is not liable for any infringement of the rights of third parties by the Customer, if and to the extent that this infringement results from the Customer or Users:
8.3.1 Exceeding the rights of use granted under this Customer Agreement;
8.3.2 Breaching data protection laws; or
8.3.3 Providing data that breaches a third-party’s rights.
8.4 The Customer shall indemnify the Provider upon demand against all third-party claims pursuant to clause 8.3 above.‍9 Use of Third Party Integrations and Interfaces
9.1 The Customer acknowledges that use of the Kaiko Inspection Software may enable or assist the Customer to access the website content of, correspond with products and services from, third parties via third-party websites and integrate Applications Data with third party services, and that it does so solely at its own risk. The Provider makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party or any integrations of Applications Data with third party services. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Provider. The Provider recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Provider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Kaiko Inspection Software.
9.2 The Provider shall make all reasonable efforts to ensure that any interface or integration to a third party provider or system used by the Customer operates correctly. The Customer acknowledges that the successful operation of any interface or integration is dependent upon the technical set up of the third party systems, and the Customer agrees that the Provider cannot be held liable for any failures in the operation of the interface or integration. Accordingly, the Provider shall have no liability or obligation whatsoever to the Customer in relation to the content on, or use of, or connection or integration of any Application Data with any third party website made available via the Kaiko Inspection Software.
9.3 If an issue arises with regard to the effective operation of an interface or integration the Provider will use all reasonable efforts to resolve the issue at the earliest opportunity.
9.4 The Customer acknowledges that:
9.4.1 It is responsible for ensuring that it has paid and instructed the third party to co-operate with the Provider; and
9.4.2 The Provider has no liability whatsoever to the Customer for any problems with any interface or integration resulting from acts or omissions of the Customer or the third party.
9.5 The Customer acknowledges that use of the Kaiko Inspection Software may enable or assist it to access the website content of, correspond with, integrate Applications Data with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Provider makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, integration of Application Data with any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Provider. The Provider recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Provider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Kaiko Inspection Software.‍10 Fees, Invoicing and Payment
10.1 The Customer shall pay a monthly fee for the provision of the Kaiko Inspection Software. The monthly fee shall be charged from the 1st day of the calendar month in which the Effective Date falls, regardless of the day in the calendar month that the services were first made available.
10.2 The fee is usage-dependent and is based on the number of ships for which Customer is entitled to use the Kaiko Inspection Software. The monthly fee as described in the Order Form is payable to the Provider.
10.3 In the event that during the term of this Customer Agreement the parties agree on the right for the Customer to use Kaiko Inspection Software for new ships, the total fees charged shall be adjusted accordingly, on a prorated calendar month basis.
10.4 All fees shall be invoiced in advance, from the first date of each calendar month in which the Effective Date falls, during the term at 12 month intervals. All fees are due and payable immediately to the bank account nominated by the Provider. If the number of ships in the Customer's fleet changes within an invoicing period, the fee for the newly added ships or the reimbursement for legally terminated ships for the remainder of the invoiced period shall be due on the third working day of the month following the entry or exit of the ship.
10.5 All fees, unless otherwise expressly stated, shall be charged for whole calendar months regardless of the day of the month on which the services commenced or were terminated. This also applies to any refund of fees payable upon early termination.
10.6 Upon each renewal of this Agreement, the Subscription Fees shall automatically increase by ten percent (10%) over the Subscription Fees applicable during the preceding term. This adjustment reflects the ongoing development and enhancement of the Kaiko Inspection Software, as well as the increasing value provided to the Customer.‍11 Obligations and duties of Customer
11.1 The Customer shall fulfill all duties and obligations necessary for the execution of this Customer Agreement, which include but are not limited to:
11.1.1 complying with the safety agreements set out in clause 3.4;
11.1.2 creating the access conditions agreed in clause 3.9;
11.1.3 complying with the restrictions/obligations with regard to the rights of use, in particular, not retrieving or having retrieved any information or data without authorization or interfering with programs operated by the Provider or invading or promoting such an intrusion into data networks of the Provider without authorization;
11.1.4 obliging the authorized users to comply with the provisions of this Customer Agreement that apply to them;
11.1.5 obtaining the necessary consent of the respective data subject in accordance with clause 12.2 insofar as the Customer collects, processes or uses personal data when using the Kaiko Inspection Software and no legal authorization is involved;
11.1.6 before sending data and information to the Provider, checking it for viruses and use state-of-the-art virus protection programs;
11.1.7 if, in order to generate Application Data using the Kaiko Inspection Software, the Customer transmits data to the Provider, the Customer must regularly back it up and in accordance with the importance of the data, create its own backup copies in order to enable reconstruction of the data and information in the event of loss;
11.1.8 if, and to the extent, that the technical possibility of doing so is mutually agreed, regularly downloading a back up of Application Data stored on the Server.‍12 Data security, data protection
12.1 Each Party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
12.2 To the extent that personal data is processed when the Customer or its User’s use the Kaiko Inspection Software, the Parties acknowledge that the Provider is a data processor and the Customer is a data controller and the Parties shall comply with their respective obligations under applicable data protection laws and the terms of the data protection agreement, published at https://www.kaikosystems.com/l/dpa, as amended form time to time, (“DPA”).
12.3 The Provider will only collect and use Customer related personal data to the extent required for the execution of its obligations under this Customer Agreement. The Customer agrees to the collection and use of such data by the Provider to this extent.
12.4 The obligations under clauses 12.1 to 12.3 above shall continue to apply as long as Application Data are within the Provider's sphere of influence, even after termination of this Customer Agreement.
12.5 In the event of a conflict between the terms of this Customer Agreement and the terms of the DPA in relation to the processing of personal data, the terms of the DPA shall take precedence over the terms of this Customer Agreement.
12.6 Where the Provider collects and processes any data of the Customer or its Users as a data controller, when providing the Kaiko Inspection Software to the Customer, such collection and processing of personal data shall be in accordance with the Provider’s privacy policy published on its website, as amended from time to time.‍13 Collection and processing of anonymized data by the Provider
13.1 The Customer agrees that the Provider may collect and use anonymized technical data and related information, including but not limited to technical information and geolocation information. The Provider may use this data, as long as it is in a form that does not personally identify a particular User or person filmed during the data collection. For this purpose, the Customer grants the Provider the right to aggregate data containing personal data from such personal-related content.
13.2 The Provider may use the anonymized data to improve its product or to provide services or technologies to the Customer and other partners and customers of the Provider.
13.3 The Customer grants the Provider the right to provide the anonymized data collected on a ship in accordance with clause 12.1 to a subsequent owner of the specific ship. The Customer may object to the provision of the data for good cause.‍14 Non-Disclosure and Confidentiality
14.1 Each Party shall treat as strictly confidential all information of a confidential nature received or obtained as a result of entering into or performing this Customer Agreement which relates to the provisions or subject matter of this Customer Agreement, the other Party or the negotiations relating to this Customer Agreement (“Confidential Information). Neither Party shall use the Confidential Information of the other Party for any purpose not envisaged in this Customer Agreement. The agreement under clause 12 shall not be affected by this.
14.2 Each Party may disclose information which would otherwise be Confidential Information if and to the extent that:
14.2.1 It is required to do so by law or any stock exchange or regulatory or governmental body to which it is subject wherever situated;
14.2.2 It is required by an affiliate or contractor of a Party for the implementation or enjoyment of this Customer Agreement in accordance with its terms, provided that it does so on a confidential basis;
14.2.3 The disclosing Party considers it necessary to disclose the information to its professional advisers, auditors and bankers provided that it does so on a confidential basis, in particular as part of a due diligence;
14.2.4 The information has come into the public domain through no fault of the receiving Party; or
14.2.5 The information was previously known or disclosed to the receiving Party or discovered or developed by the receiving Party without any breach of the receiving Party’s obligations of confidentiality.
14.3 The Provider hereby confirms that the Customer may request copies of any Application Data relating to it (including any Confidential Information contained therein) from the Manager during the term of this Customer Agreement.‍15 Contact Person
15.1 At the beginning of the contractual relationship, the Customer shall provide the Provider with at least one named contact person and their contact details (at least an email address and telephone number). The Provider is entitled to send all notices and information concerning the services of the Provider and the contractual relationship to such contact person. Upon receipt by the contact person, notices are deemed to have been received by the Customer. The Customer is obliged to inform the Provider immediately of any change of contact person or change of contact details and to name an alternative contact person together with contact details to whom future notices can be addressed.‍16 Warranties
16.1 Each Party warrants and represents that:
16.1.1 It has full corporate power and authority to enter into this Customer Agreement and to perform its obligations under this Customer Agreement;
16.1.2 The execution and performance of its obligations under this Customer Agreement does not violate or conflict with the terms of any other agreement to which it is a Party and is in accordance with any applicable laws; and
16.1.3 It shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Customer Agreement.
16.2 The Provider warrants to the Customer that it has the right to licence the Kaiko Inspection Software to the Customer.
16.3 The Provider warrants and represents that the services it provides under this Customer Agreement shall be performed with reasonable skill and care, in a professional manner, in accordance with good industry practice.
16.4 The Provider warrants to the Customer that the Kaiko Inspection Software will operate to materially provide the functions implemented by the Provider. If there is a breach of this warranty, the Provider shall use reasonable commercial endeavours, to correct any material defect or to replace the defective part of the Kaiko Inspection Software. Notwithstanding the aforesaid, the Provider shall only be obliged to remedy any material defect if:
16.4.1 The Customer notifies the Provider in writing immediately upon discovering the defect; and
16.4.2 Following the Provider’s examination of the Kaiko Inspection Software it is established that such a defect exists.
16.5 The warranties set out in clauses 16.2 to 16.4 above shall not cover deficiencies or damages relating to:
16.5.1 Any third party components not provided by the Provider; or
16.5.2 Any third party provided connectivity necessary for the provision or use of the Kaiko Inspection Software; or
16.5.3 Compliance with third party software or products, non-Provider programmes or data used in combination with the Kaiko Inspection Software; or
16.5.4 A failure of the Kaiko Inspection Software caused by the use or operation of the Kaiko Inspection Software by the Customer with an application or in an environment other than that set out in this Customer Agreement; or
16.5.5 Modifications made to the Kaiko Inspection Software not carried out by the Provider; or
16.5.6 Defects caused by non-compliance with the terms of use provided for the Kaiko Inspection Software and specified in the application documentation; or
16.5.7 Incorrect operation by the Customer when using the Kaiko Inspection Software; or
16.5.8 Use of hardware, software or other equipment which is not suitable for the use of the Kaiko Inspection Software (cf. clause 3.9, in which the requirements are specified); or
16.5.9 If the Customer fails to report a defect without undue delay and the Provider was unable to remedy the defect as a result of the failure to report the defect without undue delay; or
16.5.10 If the Customer is aware of the defect at the time of conclusion of this Customer Agreement and has not reserved its rights.
16.6 Insofar as a defect has been reported by the Customer and the Customer's warranty claims are not excluded, the Provider shall remedy the defect within a reasonable period of time - through measures of its own choice. The Customer shall give the Provider reasonable time and opportunity to carry out the rectification of the defect. The Provider's employees and agents shall be granted free access to the Customer's systems for this purpose, insofar as this is necessary.
16.7 If the reported defect is not remedied within 6 weeks, the Customer may terminate this Customer Agreement with immediate effect. This does not apply in the case of only insignificant deviations from the agreed quality or only insignificant impairment of the usability of the Kaiko Inspection Software or if the Provider cannot be accused of culpable delay in remedying the defect.
16.8 No warranty is made regarding the results the Customer can achieve from using the Kaiko Inspection Software or that the Kaiko Inspection Software will operate uninterrupted or error free.
16.9 The Customer warrants that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Customer Agreement.
16.10 The Customer warrants and represents that it and Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Kaiko Inspection Software granted under this Customer Agreement is limited as set out under this Customer Agreement. In particular the Customer and its Users shall treat any identification, password or username or other security device for use of the Kaiko Inspection Software with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Provider in writing. The Customer shall be liable for any breach of this Customer Agreement by any User.
16.11 The Customer warrants and represents that it shall ensure that its network and systems comply with the relevant specification provided by the Provider from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to the Server and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
16.12 All third party content or information provided by the Provider via the Kaiko Inspection Software, is provided “as is”. The Provider provides no warranties in relation to such content or information and shall have no liability whatsoever to the Customer for its use or reliance upon such content or information.
16.13 Except as expressly stated in this Customer Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
16.14 The Customer acknowledges that the Kaiko Inspection Software should not be used for high risk applications where precise locations or features on maps are essential to the Customer.‍17 Liability, limits of liability and contractual penalty
17.1 Neither Party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission, wilfull misconduct, or any other liability that cannot lawfully be excluded or limited.
17.2 Neither Party shall be liable for any:
17.2.1 pure economic loss;
17.2.2 special loss;
17.2.3 losses incurred by any client of the Customer or other third party;
17.2.4 losses arising from business interruption;
17.2.5 loss of business revenue;
17.2.6 goodwill or anticipated savings;
17.2.7 losses whether or not occurring in the normal course of business;
17.2.8 costs of procuring substitute goods, products or services; or
17.2.9 wasted management or staff time; whether arising out of or related to this Customer Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the Party was advised of the possibility of such damages.
17.3 Neither Party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Customer Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a Party was advised of the possibility of such damages.
17.4 Subject to clauses 17.1 to 17.3 inclusive, the total liability of the Provider to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Customer Agreement or based upon any claim for indemnity or contribution shall be limited to the total fees (excluding all taxes) paid by the Customer to the Provider during the 12 month period prior to the date on which any such claim arose. If the duration of this Customer Agreement has been less than 12 months, such shorter period shall apply.
17.5 The Customer shall be liable for any breaches of this Customer Agreement caused by the acts, omissions or negligence of any Users who access the Kaiko Inspection Software as if such acts, omissions or negligence had been committed by the Customer itself.
17.6 The Parties acknowledge and agree that in entering into this Customer Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
17.7 The Provider shall at its own expense, defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any intellectual property rights by the Provider Materials (excluding any claim deriving from any Customer provided item or open source software) and pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that:
17.7.1 the Customer notifies the Provider immediately of any claims asserted by third parties;
17.7.2 the Provider is given sole control of the defence and/or settlement; and
17.7.3 the Customer fully co-operates and provides all reasonable assistance to the Provider in the defence or settlement.
17.8 If all or part of the Kaiko Inspection Software becomes, or in the opinion of the Provider may become, the subject of a claim or suit of infringement, the Provider shall at its own expense and sole discretion:
17.8.1 Procure for the Customer the right to continue to use the Kaiko Inspection Software or the affected part thereof;
17.8.2 Replace the Kaiko Inspection Software or affected part with another suitable non-infringing service or software;
17.8.3 Modify the Kaiko Inspection Software or affected part to make the same non-infringing.
17.9 The Provider shall have no obligations under clauses 17.8.1 to 17.8.3 above to the extent that a claim is based on:
17.9.1 A modification of the Kaiko Inspection Software by anyone other than the Provider;
17.9.2 The combination, operation or use of the Kaiko Inspection Software with other services or software not provided by the Provider if such infringement would have been avoided in the absence of such combination, operation or use; or
17.9.3 The use of the Kaiko Inspection Software in any manner inconsistent with the terms of this Customer Agreement; or
17.9.4 The negligence or wilfull misconduct of the Customer.
17.10 Clauses 17.7 to 17.9 state the Customer’s sole and exclusive rights and remedies and the Provider’s entire obligations and liability for any claims made under these clauses.‍18 Term, Termination
18.1 This Customer Agreement shall commence for each ship individually on the starting dates specified in the Order Form, (“Ship Starting Date”) and for each ship shall continue for an initial term of 12 months starting from the Ship Starting Date, (“Initial Term”).
18.2 On expiry of the Initial Term, this Customer Agreement shall continue and shall automatically renew for successive 12 month periods, (each a “Renewal Term”) until terminated by either Party. Either Party may terminate a Customer Agreement for convenience by giving the other Party written notice at least 3 months prior to the expiry of the Initial Term or current Renewal Term, as applicable. Any termination shall be effective from the first day of next applicable Renewal Term.
18.3 In the event that the agreement between the Provider and the Manager (“MSA”) is terminated, an extension of the term of this Customer Agreement is not possible unless the Customer and the Provider agree to an extension. In the event that the Parties do not agree to an extension, this Customer Agreement shall automatically terminate upon expiry of the current term of the Customer Agreement.
18.4 The Customer can terminate this Customer Agreement for individual ships by giving the Provider 30 days written notice at any time, if the ship concerned is no longer operational due to a total loss or is no longer managed by the Manager.
18.5 Without limiting its rights or remedies, either Party has the right to terminate this Customer Agreement, if the other Party commits a material breach of its obligations under this Customer Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so.
18.6 Without limiting their rights or remedies, either Party has the right to terminate this Customer Agreement immediately if:
18.6.1 The other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
18.6.2 The other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
18.6.3 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other Party with one or more other companies or the solvent reconstruction of that other Party;
18.6.4 The other Party (being an individual) is the subject of a bankruptcy petition or order;
18.6.5 A creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
18.6.6 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other Party (being a company);
18.6.7 The holder of a qualifying charge over the assets of the other Party (being a company) has become entitled to appoint or has appointed an administrative receiver; A person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
18.7 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 or similar to any of the events mentioned in clauses 18.6.1 to 18.6.7 above;
18.7.1 The other Party suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
18.7.2 The other Party's financial position deteriorates to such an extent that in the terminating Party’s opinion the other Party’s capability to adequately fulfil its obligations under this Customer Agreement has been placed in jeopardy;
18.8 Without limiting its other rights or remedies, the Provider may terminate this Customer Agreement with immediate effect by giving written notice to the Customer if any fees due under this Customer Agreement are not paid on the due date for payment.
18.9 Without limiting its other rights or remedies, the Provider may suspend access to and use of the Kaiko Inspection Software if the Customer, fails to pay any amount due under this Customer Agreement on the due date for payment.
18.10 Upon termination of this Customer Agreement:
18.10.1 The Customer shall immediately pay to the Provider all of the Provider’s outstanding unpaid invoices and interest and, in respect of the Kaiko Inspection Software but for which no invoice has yet been submitted, the Provider shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
18.10.2 All licences granted under this Customer Agreement shall terminate on the effective date of termination of this Customer Agreement and the Customer shall cease using the Kaiko Inspection Software;
18.10.3 In the event that a Customer has pre-paid any amounts in respect of the Kaiko Inspection Software, the Provider will only credit a Customer for any unearned portion of the pre-paid amounts in the event that the Provider terminates this Customer Agreement early without cause or the Customer terminates early with cause. In all other circumstances the Provider will not provide credits for any unearned portion of any pre-paid amounts.
18.11 Termination of this Customer Agreement for any reason shall not affect the accrued rights and remedies of the Parties arising under this Customer Agreement and in particular without limitation the right to recover damages in respect of any breach of this Customer Agreement which existed at or before the date of termination or expiry. All clauses which by their nature should survive termination, shall survive the expiry or termination of this Customer Agreement and shall remain in force and effect.‍19 Force majeure
19.1 Except for any obligation to pay any sums due under this Customer Agreement, if a Party is wholly or partially unable to comply with its obligations under this Customer Agreement due to anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where the Provider ceases to be entitled to access the Internet for whatever reason, server crashes), transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency (each a “Force Majeure Event”), then the breaching Party’s obligation to perform in accordance with this Customer Agreement will be suspended for the duration of the Force Majeure Event. As soon as practicable after a Force Majeure Event arises, the Party affected by Force Majeure must notify the other Party of the extent to which the notifying Party is unable to perform its obligations under this Customer Agreement.‍20 Final provisions
20.1 The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Customer Agreement.
20.2 This Customer Agreement shall be governed solely by the laws of England and Wales.
20.3 Any amendments made to this Customer Agreement from time to time, i.e. signed by both Parties, form an integral part of this Customer Agreement.
20.4 This Customer Agreement together with the Order Form and the DPA constitutes the whole agreement and understanding between the Parties under this Customer Agreement and supersedes all prior agreements, representations, negotiations and discussions between the Parties relating to the subject matter thereof.
20.5 Should a provision of this Customer Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the Parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
20.6 Amendments to, or notices to be sent under this Customer Agreement, shall be in writing (which includes email) and shall be deemed to have been duly given if:
20.6.1 sent by registered post or courier to a party at the address given for that party in this Customer Agreement; or
20.6.2 sent by email to the email address used by the parties for corresponding with each other, which shall for the Customer be the contact person as set out in clause 15.1.
20.7 Notwithstanding the aforesaid, the Provider may change or modify the terms of this Customer Agreement in order to comply with a change in applicable law, upon giving 30 days prior notice. All changes shall be deemed to have been accepted unless the Customer terminates this Customer Agreement prior to the expiry of the 30-day notice period.
20.8 Neither Party may assign or transfer its rights under this Customer Agreement without the prior written consent of the other Party, such consent shall not be unreasonably withheld, however the Provider shall be entitled to assign this Customer Agreement to:
20.8.1 Any company in the Provider’s group of companies; or
20.8.2 Any entity that purchases the shares or assets of the Provider as the result of a merger, takeover or similar event, who is not a competitor of the Customer.
20.8.3 The Provider and the Customer are independent contractors and nothing in this Customer Agreement will be construed as creating an employer-employee relationship.
20.9 In the event of any inconsistency between this Customer Agreement and the Terms and Conditions, the Order Form, and the DPA, the terms of the Order Form shall prevail followed by the terms of the Customer Agreement, the Terms and Conditions, and then the DPA.
20.10 Failure to exercise, or any delay in exercising, any right or remedy under this Customer Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
20.11 Nothing contained in this Customer Agreement is intended to be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party, or any similar legislation in any applicable jurisdiction.