Terms and Conditions (“Agreed Terms”)

Please read these Terms and Conditions carefully.

1. This agreement

1.1 This agreement is made up of these Agreed Terms and any Statement of Work provided by the Customer from time to time.

1.2 The agreement will begin on the Commencement Date, and unless terminated earlier in accordance with clause 16 (Termination), will continue for the Subscription Term.

1.3 The defined terms and rules of interpretation set out in clause 32 (Interpretation) will apply to this agreement.

2. Order Process

2.1 The parties will agree a Statement of Work, setting out the Services to be provided by Ambrey to the Customer and the Scope of Use. The Customer will review the Statement of Work prior to signature and will confirm that it is complete and accurate. Neither party will be bound by the provisions of the Statement of Work until it has been agreed in writing by both parties. These Agreed Terms shall apply to any Services provided pursuant to any Statement of Work agreed in writing by the parties.

2.2 These Agreed Terms and the Statement of Work form the agreement between Ambrey and the Customer for the provision of the Services.

2.3 The parties may agree to increase the Scope of Use in respect of which the Services are provided or agree to the provision of additional Services, by the execution of a new Statement of Work.

2.4 Ambrey shall provide the Services in accordance with each agreed Statement of Work throughout the Subscription Term set out in such Statement of Work and on and subject to these Agreed Terms.

2.5 Ambrey reserves the right to update, change or replace any part of these Agreed Terms and of any agreed Statement of Work (including amending any fees or charges payable for any of the services to which these Agreed Terms apply) in its sole discretion at any time. Ambrey will notify the Customer in writing of any such changes, and such changes will apply automatically to all Statements of Work agreed and entered into or renewed after the provision of such notice. Signing a new Statement of Work following the provision of such notice will be deemed to indicate the Customer’s acceptance of the updated terms and/or charges payable.

3. Subscription Service

3.1 Ambrey hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to access and use the Services during the Subscription Term on the terms set out in these Agreed Terms and the relevant agreed Statement of Work, solely for the Customer’s business operations in accordance with the Statement of Work and the Scope of Use.

3.2 Ambrey may authorise one or more users, whether such user is an Authorised User or Subscribed Vessels, to access and use the Services in accordance with the terms of any relevant agreed Statement of Work.

3.3 The Customer undertakes that it will not use the Services in respect of any user that is not an Authorised User or that is not a Subscribed Vessel.

3.4 The rights provided pursuant to these Agreed Terms are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer, except where such subsidiary or holding company is the registered owner of a Subscribed Vessel (if applicable).

4. Sanctions

4.1The Customer warrants that at the date of this agreement it is not

(a) A Sanctions Target and has not been a Sanctions Target at any time and nothing has occurred that could result in it becoming a Sanctions Target.

(b) Contravening and has not contravened any Sanctions at any time; and

(c) Has not in any way been involved in any Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings at any time.

4.2 At all times during the term of this agreement, the Customer shall:

(a) Not contravene any Sanctions;

(b) Not do, or omit to do, any act that will cause or lead the Customer to contravene any Sanctions;

(c) To the extent that they are not already implemented, implement adequate policies and procedures to ensure compliance with Sanctions;

(d) Keep at its normal place of business detailed, accurate and up to date records and books of account sufficient to be enable verification of its compliance with its obligations under clause 4.2(a) and 4.2(c); and

(e) promptly comply with, and cooperate with, any stakeholder screening procedures and follow-up processes utilised by Ambrey from time to time, including but not limited to due diligence checks and other associated activities.

4.3 The Customer shall as soon as reasonably practicable notify Ambrey in writing if:

(a) At any time during the term of this agreement, there is any fact or circumstances that would give rise to a breach of warranties given in clause 4.1 or 4.6(a) if the warranties were repeated; or

(b) It becomes aware of any breach or suspected breach of this clause 4.

4.4 If at any time during the term of this agreement the Customer becomes a Sanctions Target, is involved in Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings) or becomes subject to Sanctions Proceedings or contravenes Sanctions or anything occurs that could reasonably be expected to result in any of these things happening, Ambrey may in its absolute discretion and without affecting any other right or remedy available to it:

(a) Treat such event as a force majeure event for the purposes of clause 17; or

(b) Terminate this agreement with immediate effect by written notice to the Customer, including at any time during or following a suspension of the parties’ obligations under clause 17.

4.5 If there is any conflict between this clause 4 and clause 17 then this clause 4 shall take precedence.

4.6 The Customer:

(a) Gives the warranties contained in clause 4.1 in respect of its key subcontractors used in the performance of this agreement, as at the date it first uses such subcontractors in the performance of this agreement;

(b) Shall impose obligations equivalent to those it has accepted in this clause 4 on its key subcontractors used in the performance of this agreement by way of a written agreement and procure that such subcontractors comply with those obligations.

4.7 Without affecting any other right or remedy available to Ambrey, any breach of this clause 4 by the Customer shall constitute a material breach of this agreement, is irremediable u which nder clause 16.3(b).

5. Restrictions on use of the Services

5.1 The Customer shall not use the Services in any manner that:

The Customer shall not use the Services in any manner that:

(a) makes any Confidential Information publicly available;

(b) may infringe the intellectual property rights of Ambrey or third parties;

(c) could be harmful to Ambrey’s systems or data, or that of any other user of Ambrey’s other software products (including but not limited to introducing or permitting the introduction of, any thing or device, including any software, code, file or programme which may (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data (whether by re-arranging, altering or erasing the user experience, including worms, trojan horses, viruses and other similar things or devices or uploading any material that contains a Virus or other malicious code, or distributing or transmitting a Virus);

(d) in any way which breaches or could potentially breach a legal duty to a third party (including a duty of confidentiality) or which infringes or could potentially infringe a person’s right to privacy;

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

(f) facilitates illegal activity;

(g) depicts sexually explicit images;

(h) promotes unlawful violence;

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

(j) is otherwise unlawful, illegal or causes damage or injury to any person or property;

and Ambrey reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access, including in relation to any Authorised User or Subscribed Vessel (as appropriate) to any material that breaches the provisions of this clause.

5.2 The Customer must not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services in any form or media or by any means; or

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

(b) access all or any part of the Services in order to build a product or service which competes with the Services; or

(d) subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users and/or Subscribed Vessels (as appropriate), or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this agreement.

5.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Ambrey.

6. The Services

6.1 Ambrey will provide the Services described in the Statement of Work with reasonable skill and care.

6.2 Ambrey will use commercial reasonable endeavours to provide the Services at the time(s) and date(s) or within the period set out in any relevant agreed Statement of Work or as soon as reasonable possible thereafter, except for:

(a) Planned maintenance carried out during a maintenance window with 48 hours’ notice; and

(b) Unscheduled maintenance performed on a Saturday, Sunday or public holiday in England, or before 0830 hours or after 1730 hours local UK time on any other day, provided that Ambrey has used reasonable endeavours to give the Customer at least 6 hours’ notice in advance.

6.3 Where Ambrey foresees a delay in the provision of the Services, Ambrey will notify the Customer as soon as possible, setting out the revised dates for provision of the Services.

7. Support Services

7.1 Ambrey will provide the Customer with the Support Services set out in the Statement of Work. Ambrey may amend the Support Services in its sole and absolute discretion from time to time by notice in writing to the Customer.

7.2 The Customer shall report all faults to Ambrey as soon as they are detected and shall include sufficient material and information to enable Ambrey to duplicate the problem, including, but not limited to:

(a) A clear and accurate description of the fault;

(b) the area of the Subscription Services to which it relates;

(c) what function was being performed when the fault occurred and/or the sequence of events leading up to the occurrences of the fault;

(d) the error message displayed, if any; and

(e) any other information relating to the Subscription Services or the fault that Ambrey requires to perform its obligations hereunder.

8. Data protection

8.1 Where Ambrey receives Personal Data from the Customer and is required to process Personal Data to deliver the Services, the Customer is the Controller of that Personal Data and Ambrey is the Processor.

8.2 As the Controller, it is the responsibility of the Customer to inform individuals how their Personal Data is used and maintain the mandatory records required under Data Protection Legislation.

8.3 Where Ambrey Processes Personal Data for which the Customer is the Controller, as set out in the Statement of Work, it shall:

(a) Process Personal Data in line with the Customer’s documented instructions (including via the Customer’s use of the Subscription Services);

(b) ensure that its staff who have access to Personal Data are bound by obligations of confidentiality (which are included in their employment contract or equivalent contract with them);

(c) have technical and organisational measures and procedures which ensure an appropriate level of security for Personal Data and reduce the risk of a Personal Data Breach;

(d) only appoint third parties (who Ambrey instructs to help it deliver its Service) after it has notified the Customer in writing and the Customer has not objected within fourteen (14) days;

(e) not transfer such Personal Data outside of the UK or European Economic Area (other than where the Personal Data is stored on a Subscribed Vessel which is itself out the UK or European Economic Are) until after it has notified the Customer in writing and the Customer has not objected within fourteen (14) days;

(f) promptly inform the Customer if there has been a Personal Data Breach which impacts the Personal Data it Processes under this agreement;

(g) assist the Customer and provide the information required to ensure the Customer can comply with their obligations under the Data Protection Legislation;

(h) promptly inform the Customer if it receives a request from or on behalf of an individual who wishes to exercise their rights under the Data Protection Legislation, and provide assistance so the Customer can respond to the request;

(i) not disclose Personal Data without the Customer’s written permission unless it is legally required to make the disclosure (in which case, Ambrey will promptly notify the Customer unless it is prohibited from doing so); and

(j) allow the Customer to access its premises or records to audit its compliance with the Data Protection Legislation, provided the Customer gives seven (7) days’ notice.

9. Third party providers

9.1 The Customer acknowledges that the Subscription Services may enable or assist the Customer to access the data of and correspond with, third parties via third-party websites and that it does so solely at its own risk. Ambrey makes no representation, warranty 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.

10. Ambrey’s obligations

10.1 Ambrey undertakes that the Services will be performed substantially in accordance with the Statement of Work and with reasonable skill and care.

10.2 The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by:

(a) any breach of the Customer’s obligations under clause 11 (“Customer’s Obligations”);

(b) any use of the Services contrary to Ambrey’s instructions; or

(c) any modification or alteration of the Services by any party other than Ambrey or Ambrey’s duly authorised contractors or agents.

If the Services are not delivered in accordance with clause 10.1, Ambrey will, at its expense, use commercial reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution will be the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.

10.3 Ambrey:

(a) Will use commercial reasonable endeavours to procure, but does not warrant:

(i) that the Customer’s use of the Services will be uninterrupted or error-free; or

(iii) that the Subscription Services or the information obtained by the Customer through the Services will meet the Customer’s requirements; or

(iii) that the Software and the Services will be free from Viruses.

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.4 This agreement shall not prevent Ambrey from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

11. Customer’s obligations

11.1 The Customer shall:

(a) provide Ambrey with:

(i) co-operation and access to staff and timely decision making in relation to this agreement; and

(ii) access to such information including but not limited to Customer Data, security access information and configuration services; and

(iii) access to the Subscribed Vessel, equipment, system and facilities;

as may reasonably be required by Ambrey in order to provide the Services, including but not limited to the information required by Ambrey in relation to the Statement of Work and, if so advised, the document headed “Required Subscribed Vessel Information for Guardian Service” (which document may be provided from time to time to the Customer by Ambrey if so required).;

(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties or otherwise in the performance of its obligations, Ambrey may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) use the Services, and procure the use of the Services by Authorised Users and Subscribed Vessels (as appropriate), in accordance with the terms and conditions of this agreement and any relevant Statement of Work and shall be responsible for any breach of this agreement by any Authorised User and/or Subscribed Vessel (as appropriate);

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Ambrey, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f) ensure that its network and systems required for use of the Subscription Services comply with the relevant specifications provided by Ambrey from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Ambrey’s data centres, and for 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.

11.2 The Customer warrants that it owns all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

11.3 The Customer shall defend, indemnify and hold harmless Ambrey against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) Ambrey provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

12. Charges and payment

12.1 The Customer shall pay the Charges to Ambrey in accordance with the payment terms set out in the relevant Statement of Work and this clause 12.

12.2 All invoices will be sent by email to the email address specified by the Customer in the relevant Statement of Work and are payable within 45 days of the invoice date.

12.3 If Ambrey has not received payment of any invoice by the due date, and without prejudice to any other rights and remedies of Ambrey:

(a) Ambrey may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Ambrey shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Barclays Bank plc, commencing on the due date and continuing until fully paid, whether before or after judgment.

(c) Ambrey, in its sole discretion, may arrest any then current Subscribed Vessel of the Customer, irrespective of whether the Subscribed Vessel that Ambrey elects to arrest is a Subscribed Vessel for the purposes of any agreement for which payment remains outstanding. Ambrey may retain the Subscribed Vessel under arrest until all the Customer’s outstanding invoices have been settled.

12.4 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in US Dollars;

(b) are non-cancellable and non-refundable;

12.5 Save as otherwise set out in any Statement of Work, Ambrey shall be entitled to increase the Charges on the provision of not less than 60 days’ prior notice to the Customer and the Statements of Work shall be deemed to have been amended accordingly.

13. Proprietary rights

13.1 The Customer acknowledges and agrees that Ambrey and/or its licensors own all intellectual property rights in the Services. Except as expressly stated in this agreement, the Customer is not granted any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

13.2 Ambrey confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

13.3To the extent that any intellectual property or other rights subsist in the Customer Data, the Customer warrants that it has the right to permit the use of such Customer Data by Ambrey to provide the Services to the Customer. The Client hereby grants to Ambrey the non-exclusive right to copy, store and use such Customer Data for the duration of this agreement and to the extent necessary to provide the Services to the Client. The data stored and processed pursuant to the terms of this clause 13.3 shall be used for quality assurance and safeguarding purposes and will include the crew names, titles, contact details, as well as security policies, ship particulars and correspondence between vessel and agent relevant to the timely delivery of the service.

13.4 Ambrey may use information and data that relates to the Subscribed Vessels, and that has been provided to or obtained by Ambrey in connection with the performance of the Services (“Vessel Data”), in anonymised or aggregated form (without disclosure of personal information or information relating to one or more Subscribed Vessels to any third party), in perpetuity, to provide, improve and develop Ambrey’s products and services. To the extent that the Customer owns any intellectual property or other rights in such Vessel Data, the Customer hereby grants Ambrey an exclusive licence to use such Vessel Data for such purposes.

13.5 Ambrey may from time-to-time request from the Customer and/or the Subscribed Vessels (or any of them) information as to any incident in which any such Subscribed Vessel is involved or has been involved, so that Ambrey can then incorporate that information into its analysis as to the security and risk environment in any given geographical and/or geopolitical area. The extent to which the Customer and/or the particular Subscribed Vessel responds to any such request, and the use to which such information that is provided can be put (which use shall be specified by Ambrey at the time that it makes its request for information as provided for in this clause 13.5), will be in the absolute discretion of the Customer and/or the particular Subscribed Vessel.

14. Confidentiality

14.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

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

14.2 Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

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

14.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

14.5 The Customer acknowledges that details of the Services and the results of any performance tests of the Services constitute Ambrey’s Confidential Information.

14.6 Ambrey acknowledges that the Customer Data is the Confidential Information of the Customer.

14.7 Subject always to clause 14.8, no party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

14.8 Ambrey shall be entitled to issue a press release for publication in relevant industry publications, and to publish such release upon its website and upon its other social media accounts, confirming that it and the Customer have entered into a contract for the provision of the Subscription Services. For the avoidance of doubt, Ambrey shall be entitled both to identify the Customer by name and describe the services to be provided in that press release.

14.9 The above provisions of this clause 14 shall survive termination of this agreement, however arising.

15. Limitation of liability

15.1 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Ambrey shall have no liability for any damage caused by errors or omissions in any information, instructions or data of whatever nature provided to Ambrey by the Customer in connection with the Services, or any actions taken by Ambrey at the Customer’s direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c) the Services and any factual reporting are provided to the Customer on an “as is” basis.

15.2 Nothing in this agreement excludes the liability of Ambrey:

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

(b) for fraud or fraudulent misrepresentation; or

(c) in respect of any matter for which liability cannot be limited or excluded by law.

15.3 Subject to clause 1 and clause 15.2, Ambrey’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Charges paid by the Customer to Ambrey in connection with the SPOT Guardian services during the 12 month period immediately prior to the date on which the liability first arose.

15.4 Subject to clause 1 and clause 15.2 Ambrey shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:

(a) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; or

(b) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, (whether direct or indirect).

16. Term and termination

16.1 These Agreed Terms, and any variations to these Agreed Terms as may be notified to the Customer from time to time, shall apply to each and any Statement of Work agreed by the Parties from time to time.

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

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 45 days after being notified in writing to make such payment;

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

16.3

On termination of this agreement for any reason:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 45 days after being notified in writing to make such payment;

16.4 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;

(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

(c) subject to clause 13.4, Ambrey may destroy or otherwise dispose of any of the Customer Data in its possession unless Ambrey receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Ambrey shall use commercial reasonable endeavours to deliver the back-up to the Customer, in the form and manner reasonably requested by the Customer, within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Ambrey in returning or disposing of Customer Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination, shall not be affected or prejudiced.

17. Force majeure

17.1 Ambrey shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, malicious acts of any third party, strikes, lock-outs or other industrial disputes (whether involving the workforce of Ambrey or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of its sub-contractors, provided that the other party is notified of such an event and its expected duration.

18. Conflict

18.1 If there is an inconsistency between any of the provisions in these Agreed Terms and any Statement of Work, the agreement shall be interpreted in accordance with the following order of preference:

(a) The provisions in each Statement of Work shall prevail, but only in respect of the applicable Statement of Work; and

(b) The Agreed Terms.

19. Variation

19.1 Except as expressly set out in these Agreed Terms, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Waiver

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

21. Rights and remedies

21.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. Severance

22.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

22.2 If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

23. Entire agreement

23.1 These Agreed Terms and the applicable Statement of Work constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

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

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

24. Assignment

24.1 The Customer shall not, without the prior written consent of Ambrey, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

24.2 Ambrey may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

25. No partnership or agency

25.1 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

26. Third party rights

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

27. Counterparts

27.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

27.2 Transmission of an executed counterpart of this agreement the executed signature page of a counterpart of this agreement by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the other with the “wet ink” hard copy original of their counterpart.

27.3 No counterpart shall be effective until each party has provided to the other at least one executed counterpart.

28. Notices

28.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Statement of Work.

28.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the time stamp obtained by the sender).

29. Governing law

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

30. Jurisdiction

30.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

31. Interpretation

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

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.

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

Charges: the fees payable by the Customer pursuant to any applicable Statement of Work and/or as advised to the Customer from time to time.

Confidential Information: information that is by its nature proprietary, confidential or commercially or technically sensitive, whether or not it is clearly labelled as such, including but not limited to Customer Data, or information that is identified as Confidential Information in clause.

Controller: the organisation that makes decisions about what and why information is being collected about individuals.

Customer Data: any data inputted onto the Services by the Customer, by any Authorised User or by Ambrey on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services or to which access is otherwise provided by the Customer to Ambrey.

Data Protection Legislation: any laws and regulations relating to privacy or processing of personal data, including:

(a) EU Directive 2002/58/EC (as amended by 2009/136/EC) and The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR);

(b) EU Regulation 2016/679 (GDPR)

(c) the GDPR as amended by Schedule 1 of The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (UK GDPR) and Data Protection Act 2018 (DPA);

(d) any laws or regulations supplementing or replacing PECR, the GDPR, UK GDPR or DPA; and

(e) any relevant guidance or codes of practice issued by a regulator.

Insolvency Event: any event where:

(i) a party proposes or enters into any composition, compromise or other arrangement for the benefit of its creditors or a class of creditors; or

(ii) a party obtains a moratorium or other protection from its creditors; or

(iii) a party takes any steps (or has steps taken against it) towards:

(iv) winding up (where such step is a winding up petition, it shall only constitute an Insolvency Event where such petition is not withdrawn within 60 days) or dissolving the other party;

(v) appointing a trustee, supervisor, receiver, liquidator, administrator or similar officer or other encumbrancer in respect of the other party or any of its assets; and/or

(vi) taking possession of or levying a distress or execution against any of the other party’s assets; or

(vii) an event occurs which would result in a floating charge crystallising over any of a party’s assets; or

(viii) a party stops carrying on business; or

(ix) a party is unable to pay its debts or admits it is unable to do so (within the meaning of section 123 of the Insolvency Act 1986 (without any need for the terminating Party to prove it in court)); or

(x) the value of a party’s assets are at any time less than the amount of its liabilities, taking into account its contingent and prospective liabilities; or

(xi) any event analogous to any of the above happens in any jurisdiction.

Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Personal Data: means any information which does (or could be used) identify a living person.

Personal Data Breach: A security incident in which Personal Data has been accidentally or illegally destroyed, lost, changed or shared with, accessed or used by someone who did not have permission.

Process(ing): Any action in relation to personal data, ranging from actively using or analysing the information to simply having access to or storing the information.

Processor: The organisation that carries out a task for the Controller which requires them to process personal data.

Sanctions: any laws or regulations relating to economic or financial, trade, immigration, aircraft, shipping or other sanctions, export controls, trade embargoes or restrictive measures from time to time imposed, administered or enforced by a Sanctions Authority.

Sanctions Authority: the UK and the United States of America, the United Nations (UN) (and any other governmental authority with jurisdiction over the Customer or any part of its business or operations or key subcontractors used in the performance of this agreement, and in each case their respective governmental, judicial or regulatory institutions, agencies, departments and authorities, including (without limitation) the UN Security Council, Her Majesty’s Treasury and the UK’s Office of Financial Sanctions Implementation and Department of International Trade and the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Departments of State or Commerce or any other US government authority.

Sanctions List: any of the lists issued or maintained by a Sanctions Authority designating or identifying persons that are subject to Sanctions, in each case as amended, supplemented or substituted from time to time, including (without limitation) the UK Sanctions List, Consolidated List of Financial Sanctions Targets in the UK and the Consolidated United Nations Security Council Sanctions List.

Sanctions Proceedings: any actual or threatened:

(i) litigation, arbitration, settlement or other proceedings (including alternative dispute resolution, criminal and administrative proceedings); or

(ii) investigation, inquiry, enforcement action (including the imposition of fines or penalties) by any governmental, administrative, regulatory or similar body or authority,

in each case relating to, or in connection with, any actual or alleged contravention of Sanctions.

Sanctions Target: a person that is:

(i) listed on a Sanctions List;

(ii) Owned or Controlled by a person listed on a Sanctions List;

(iii) resident, domiciled or located in, or incorporated or organised under the laws of, a country or territory that is subject to any Sanctions; or

(iv) otherwise identified by a Sanctions Authority as being subject to Sanctions.

Scope of Use: means the scope of use of the Subscription Services (which may be defined by number of Subscribed Vessels or Authorised Users) as set out in the Statement of Work.

Service Order Request: means a request for further services submitted to Ambrey by the Customer as set out in the Statement of Work.

Services: the Subscription Services and Support Services.

Software: the online software applications provided by Ambrey as part of the Services.

Subscribed Vessels: those vessels in respect of which the Customer has purchased the Services, as set out in the Statement(s) ofbe provided as set out in the Statement of Work.

Support Services: Ambrey’s technical support services for the Subscription Services, as set out in the Statement(s) of Work.

Vessel Data: shall have the meaning given to it in clause 13.4.

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

31.2 In these Terms and each Contract:

(a) a person means an individual, a firm, a company, an unincorporated body or a government entity (whether or not having a separate legal identity from its members or owners) and any of its successors, permitted transferees or permitted assignees;

(b) clause, schedule and paragraph headings shall not affect the interpretation of these Terms;

(c) references to statutes, regulations or other legislation or enactments referenced herein shall be deemed to be references to that enactment as amended, supplemented, re-enacted or replaced from time to time;

(d) the words include, including and similar words or expressions will not limit the meaning of the words that come before them;

(e) reference to writing or written includes e-mail but not any other form of electronic communication; and

(f) each of the parties shall be referred to as a party or together, the parties.