MARINE CLOUD LTD TERMS AND CONDITIONS
Remote Setup Packages
The Customer’s attention is particularly drawn to the provisions of clause 7.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.7.
Contract: the contract between Marine Cloud and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Marine Cloud.
End User Agreement: the agreement which the Customer or its agent(s) will be required to accept on registration of the website if they wish to access the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Marine Cloud: Marine Cloud Limited registered in England and Wales with company number 8249632 whose registered address is 11 Nash Ct Rd, Margate, Kent CT9 4DJ.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form, or the Customer’s written acceptance of a quotation by Marine Cloud.
Services: the provision of an online service to view, upload, and download electronic information and receive parts and warranty notifications.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Marine Cloud issues written or e-mail acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Marine Cloud which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Marine Cloud, and any descriptions or illustrations contained in Marine Cloud’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Marine Cloud shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Marine Cloud shall supply the Services to the Customer.
3.2 Depending on the Customer’s set up requirements, the Customer will either be permitted ‘Bespoke setup’ service ‘Remote setup’ service (full vessel) or ‘Remote setup package’ (limited number of parts and checklists) Customers have the option to upgrade during any period of their annual subscription and will be charged on a pro-rata basis.
3.3 For Customers whose subscription is settled by a third party (i.e. manufacturer, charter agent) if permitted, the third party will be able to access the account via a corporate login. Access to your account is only permissible whilst the third party pays for the ‘End Users’ subscription fees.
3.4 Marine Cloud shall use its reasonable endeavours to meet any performance dates specified in Marine Cloud’s promotional materials, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.5 Where digital versions of manuals are not available from the manufacturer, they may be scanned and therefore not have a full search functionality. Additional costs will apply based on volume.
3.6 Marine Cloud shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Marine Cloud shall notify the Customer in any such event.
3.7 Marine Cloud warrants to the Customer that the Services will be provided using reasonable care and skill.
3.8 Marine Cloud will be able to access the Customer’s account as and when necessary to ensure the account and website functionality is kept up-to-date.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Marine Cloud in all matters relating to the Services; and
(c) provide Marine Cloud with such information and materials as Marine Cloud may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.
4.2 The Customer understands that it must accept, and all of its employees and agents who it instructs to access the Services must accept, the terms of the end user agreement displayed in the registration process before it or they will be permitted to access the Services.
4.3 If Marine Cloud’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Marine Cloud shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Marine Cloud’s performance of any of its obligations;
(b) Marine Cloud shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Marine Cloud’s failure or delay to perform any of its obligations as set out in this clause 4.3; and
(c) the Customer shall reimburse Marine Cloud on written demand for any costs or losses sustained or incurred by Marine Cloud arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be as follows:
(a) a set up fee;
(b) an annual fee;
an administration fee where the Customer wishes new parts/equipment/notifications to be included within the library and email notifications. A maximum of 10 parts/equipment/notifications may be added to the user account in respect of each administration fee. All such additions must be supplied to Marine Cloud at the same time; as detailed in the pricing and packages schedule attached to these Conditions (or if supplied by e-mail, sent to the Customer with these Conditions).
5.2 From time to time Marine Cloud will review both the set-up fees, annual subscription fees and administration fees and may alter pricing at any time by notice to the Customer.
5.3 Marine Cloud shall invoice the Customer for 100% of the set up fee on the Customer entering into this agreement. Invoices for annual fees may be issued by the Supplier up to two months prior to the commencement of the Services to which they relate. Invoices for packaged Services and administration fees may be issued by the Supplier on receipt of the relevant Order from the Customer.
5.4 The Customer shall pay:
(a) The set up fee immediately on entering this Agreement; and
each invoice submitted by Marine Cloud thereafter within 21 days of the date of the invoice; and in full and in cleared funds to a bank account nominated in writing by Marine Cloud, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Marine Cloud to the Customer, the Customer shall, on receipt of a valid VAT invoice from Marine Cloud, pay to Marine Cloud such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 Without limiting any other right or remedy of Marine Cloud, if the Customer fails to make any payment due to Marine Cloud under the Contract by the due date for payment (Due Date), Marine Cloud shall have the right to charge interest on the overdue amount at the rate of 5 per cent per annum above the then current Barclays Bank Plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Marine Cloud in order to justify withholding payment of any such amount in whole or in part. Marine Cloud may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Marine Cloud to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer may print off one copy, and may download extracts, of any page(s) from the Marine Cloud website for its personal reference.
6.2 The Customer must not modify the paper or digital copies of any materials which it has printed off or downloaded in any way, and it must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
6.3 Marine Cloud’s status (and that of any identified contributors) as the authors of material on the Marine Cloud website must always be acknowledged in any further publication of such materials.
6.4 The Customer must not use any part of the materials on the Marine Cloud website for commercial purposes without obtaining a licence to do so from Marine Cloud and/or its licensors, as appropriate.
6.6 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Marine Cloud.
6.7 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Marine Cloud obtaining a written licence from the relevant licensor on such terms as will entitle Marine Cloud to license such rights to the Customer.
7. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Conditions shall limit or exclude Marine Cloud’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clause 7.1:
(a) Marine Cloud shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Marine Cloud’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the annual fee charged to the Customer for the year in question.
(c) Marine Cloud accepts no responsibility for any loss which may arise from accessing or reliance on the information on the Marine Cloud website
(d) Marine Cloud accepts no liability for the content of the uploaded manuals or the advice given within them. This includes the period in which service schedules are set.
(e) Marine Cloud accepts no responsibility for persons carrying out the work related to the uploaded service schedules.
(f) Marine Cloud accepts no responsibility for the content of uploaded manufacturer manual updates.
(g) Marine Cloud accepts no liability for the content of vessel specific ‘Email notifications’ uploaded by the Customer or ‘End User’.
7.3 Marine Cloud makes no warranties, express, implied or statutory, with respect to the Information provided within the Marine Cloud website.
7.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.5 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) 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) 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;
(c) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(d) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.2 Without limiting its other rights or remedies, Marine Cloud may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment or the Customer or any of its agents breach the End User Agreement.
8.3 Without limiting its other rights or remedies, Marine Cloud shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Marine Cloud if the Customer becomes subject to any of the events listed in clause 8.1(b)) to clause 8.1(d), or Marine Cloud reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Marine Cloud all of Marine Cloud’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Marine Cloud shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10. PERSONAL INFORMATION
10.1 Marine Cloud values your privacy. We will not resell any of your personal information including your name, address, or vessel information that specifically pertains to you.
10.2 We will use the information you give us to help us provide better products and service. We may contact you from time to time regarding special offers, promotions, new product information and services.
10.3 By using the Services, you signify your assent to the Marine Cloud ‘End User Agreement’. If you do not agree to this policy, please do not use our website. We reserve the right, at our discretion, to change, modify, add, or remove portions of this policy at any time. Changes will be published to existing customers. Your continued use of the Marine Cloud website following the posting of changes to these terms will mean you accept those changes.
11.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Marine Cloud including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Marine Cloud or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Marine Cloud shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Marine Cloud from providing any of the Services for more than six weeks, Marine Cloud shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.2 Assignment and subcontracting:
(a) Marine Cloud may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of Marine Cloud, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by e-mail to the contact e-mail address notified to Marine Cloud by Marine Cloud or, in respect of e-mails to Marine Cloud email@example.com, or by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by e-mail, on the next Business Day after transmission.
(c) This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Marine Cloud.
11.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
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