This maritime supplier listing website, known as Sustainable Maritime Suppliers (“SMS”), is a ‘business-to-business- site that is owned by the International Marine Purchasing Association (“IMPA”) and operated by Alexony Ltd ("Alexony") via the IMPA ACT initiative, of East Bridge, East Street, Colchester, Essex, CO12TX UK. SMS is principally intended for use by maritime and shipping professionals to find information about the goods and services offered by suppliers to the maritime industry, as well as additional information about their responsible practices, certifications and approvals.
2. Permitted and forbidden uses of SMS
2.1 You may access the SMS, make a copy of the results of any searches, and use those results for any reasonable purpose within Your business other than those set out in Clause 2.3 below.
2.2 Such use is subject to any applicable third party content providers' licences.
2.3 You shall not in any circumstances:
2.3.1 modify the content or other material from SMS ("the Content") or merge the Content with any other data or in any way adapt or change it;
2.3.2 sell, republish, provide to a third party for financial gain or otherwise trade in materials copied from the Content;
2.3.3 use or redistribute the Content for the purposes of compiling databases, lists or directories; 2.3.4 permit or allow the Content to infringe or otherwise prejudice the proprietary rights of SMS or any third party content provider;
2.3.5 use the Content for any unlawful, offensive, abusive, indecent, obscene or menacing purpose or any purpose that is likely to bring SMS into disrepute or to cause SMS embarrassment;
2.3.6 use the Content as a source for targeting material or contact data for any kind of telemarketing, direct marketing, viral or other electronic marketing activity on Your own behalf or on behalf or for the benefit of another party;
2.3.7 access or copy the Content or make any use of it that is preparatory to any prohibited conduct referred to above.
3. Intellectual property
3.1 Unless otherwise stated, SMS and its licensors owns all the intellectual property rights in the content of SMS (including the design, text, graphics and arrangement thereof) and in the software used therein.
3.2 Such intellectual property rights include, without limitation, copyrights and database rights in the information displayed as SMS Search results.
3.4 "SMS" is service mark of IMPA. All other trademarks, product names and company names or logos cited anywhere on SMS are the property of their respective owners.
4. Basis on which SMS is provided
4.1.1 SMS and the Services (and any Content made available through them) are provided on "As Is" and "As and When Available" basis. Whilst SMS shall use all reasonable skill and care in the creation and supply of SMS profiles and the Services, SMS does not give any guarantee or warranty as to their suitability, availability, accuracy, freedom from fault, freedom from viruses or other impairing or harmful components or fitness for any purpose.
4.1.2 SMS shall run commercially available virus detection and correction software and shall endeavour to ensure that errors are not service affecting and to correct reported faults as soon as it reasonably can. If a fault occurs, You should report the fault to SMS (see the Contact page on www.sustainablemaritimesuppliers.com).
4.1.3 SMS may need to temporarily suspend the whole or any part of the Services from time to time.
4.2.1 SMS and content providers (including those persons, companies and other organisations whose goods or services may be displayed or referred to in SMS Profiles) ("Content Providers") make reasonable efforts to make the information available on SMS as accurate as possible.
Where Content is shown as being "authenticated", this means that such Content has been checked by or provided by the Content Provider. In no circumstances, however, is any warranty or fitness implied.
4.2.2 Nevertheless SMS is not an agent for and does not vouch for Content Providers, nor for the availability, suitability or prices of their goods and services nor for the legal entitlement, competences, professional qualifications, trade certifications, or memberships of trade associations of such persons, companies or other organisations. You should satisfy Yourself in respect of all such matters as well as those referred to in Clause 4.3.
4.2.3 Neither SMS nor any of its agents, Content Providers, sponsors or licensors make any representation or warranty or condition, either express or implied, statutory or otherwise, to You as to the accuracy, content, timeliness, completeness, non-infringement of proprietary rights or otherwise, legality, reliability, merchantability, fitness for a particular purpose, quality or suitability of any information, advice, Content, service, search results, products, services, goods or merchandise, provided through, advertised on, received through links provided on, or in connection with the use of, SMS.
4.3.1 SMS recommends that before You use any information with respect to any matters relating to medicine, law, insurance, accounting or any other profession You seek advice from a qualified professional.
4.3.2 SMS may make available certain financial information provided by third parties, including information regarding industries, companies, stocks, investments and securities. Such investment information is for information purposes only and You should not construe it as investment advice or use it for trading or investing purposes. Financial investments bear varying degrees of risk. SMS strongly discourages You from making any investment decision based upon information that You cannot confirm and strongly recommends that You seek advice from a qualified financial advisor before You make any financial investment.
4.4.1 No oral advice or written information given by SMS or its affiliates, or any of its officers, directors, employees, agents, providers, merchants, sponsors, licensors, or the like, will create a representation, a warranty or condition nor should You rely on any such information or advice.
4.4.2 In jurisdictions that do not allow the exclusion or disclaimer of certain warranties, this Clause 4 may not apply to You in part or at all.
5. Limitation of liability
5.1.1 Subject to Clause 5.3, SMS accepts no liability in contract or tort (including liability for negligence) for loss of business revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect, special or consequential loss or damage (including punitive damages).
5.1.2 If any jurisdiction does not allow the exclusion or limitation of liability for the types of loss set out in Clause 5.1.1, liability is limited to the fullest extent permitted by law.
5.2.2 Where one incident gives rise to claims by more than one User, SMS' liability to all Users arising out of such incident will be limited to US$10,000, which will be shared between them pro rata. In calculating such prorating, the amount considered in respect of Your claim will be the lesser of the sum claimed by You or $50.
5.3 SMS does not limit or exclude its liability for death or personal injury caused by its negligence or any other liability to the extent that such a limitation or exclusion is prohibited by law.
5.4 SMS will not be liable if SMS cannot perform any of its obligations under this Agreement because of circumstances beyond its reasonable control such as technical failure, severe weather, fire or explosion, civil disorder, war, or military operations, natural or local emergency, anything done by government or other competent authority or industrial disputes of any kind.
5.5 Nothing in this Agreement affects the liability of SMS for fraudulent misrepresentation.
6.2 A party's failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between You and SMS nor trade practice will act to modify any provision of this Agreement.
6.3 If any provision of this Agreement is held to be invalid or unenforceable, all other provisions of this Agreement will remain in full force and effect.
7. Jurisdiction and governing law
7.1 These conditions shall be governed by and construed in accordance with the laws of England. 7.2 Alexony controls SMS from within the country of England. It can, however, be accessed from other places around the world. Although these places may have different laws from those of England, by accessing SMS You agree that the laws of England, without regard to rules relating to conflict of laws, will apply to all matters relating to Your use of SMS. You and SMS also agree to submit to the non-exclusive jurisdiction of the English courts, with respect to such matters. 7.3 If You access SMS from a place outside of England You acknowledge that You do so voluntarily and are responsible for complying with local laws. © Alexony March 2015 - Version 2015-01
SUSTAINABLE MARITIME SUPPLIERS SERVICE CONDITIONS (2015-01)
1. THE CONTRACT BETWEEN YOU AND SMS
1.1 If You wish to use the Services (see Clause 2.1), You should only do so if these Service Conditions are acceptable to You without modification.
1.2.1 Subject to Clause 1.2.2, these Service Conditions become binding on both You and SMS when You accept them on any order form or during any registration or verification process (for example, by ticking a box: "I have read and accept the current SMS Service Conditions") or otherwise. Further, if for any reason You do not go through any such processes and do not have an opportunity to accept these Service Conditions, Your use of any Service shall be deemed to bind both You and SMS to these Service Conditions.
1.2.2 SMS reserves the right to refuse to allow You to use any or all Services if in its absolute discretion it considers that Your use, or potential use, of a Service may be in breach of Clauses 4.4, 4.5 or 4.6 or that You are not an appropriate business for the SMS, in which case it will refund any money paid.
1.4.1 SMS may at any time change, replace or delete these Service Conditions or include new terms. Before any proposed change becomes effective, SMS shall use reasonable endeavours to e-mail "Your Administrator" (being the person who has control of the details (including the e-mail address) referred to in Clause 4.2) fourteen days notice of any such change. Such changes shall also be notified on the SMS website. 1.4.2 If You do not agree to such proposed change, You must immediately notify SMS in writing, in which case You or SMS may discontinue all Services being used by You immediately. 1.4.3 Your continued use of the Services shall constitute Your acceptance of any such changes to these Service Conditions. 1.5 Your use of any additional or changed Services shall constitute Your acceptance of any clauses or conditions specific to such Service.
2. THE SERVICES
2.1 You can use any of the services of the SMS as are described in paragraph 2 of the Service Guidelines and on the SMS Homepage ("the Services") and which You have agreed to use ("Your Services").
2.2 SMS may use agents and/or sub-contractors to perform, or assist it in performing, Your Services on its behalf where it deems it appropriate to do so.
2.3 Where You have to provide Content to SMS for it to carry out its obligations in respect of a Service, SMS shall not commence any work necessary for such Service until it has received from You all of the Content required for the Service. SMS shall not be required to return any such Content that You give it for the purpose of providing such Services to You.
2.4.1 Subject to Clause
2.4.2 SMS reserves the right to add a new Service or alter the look, feel, style, facilities and functionality of the SMS or any of the Services at any time without giving You prior notice but in doing so SMS shall endeavour not to materially diminish the overall functionality and value of the Services or the SMS.
2.4.2 SMS may remove a Service or a material part of a Service. Before any proposed removal becomes effective and if You are using the Service proposed to be removed, SMS shall use reasonable endeavours to e-mail Your Administrator fourteen days notice of any such removal. Such removals shall also be notified on the SMS website. You shall be entitled to a pro-rata refund in respect of that part of a period for which You have paid but for which the Service shall cease to be available to You.
3.1 SMS reserves the right to charge fees for any of the Services ("Fees"), but may at its sole discretion choose to offer some Services free of charge generally or to a particular customer. 3.2.1 Where Fees are applicable to Your Services, You shall pay such Fees as are set out in the Service Description pages or elsewhere in SMS or in any order form, as well as any applicable tax (e.g. VAT). 3.2. Unless SMS specifically agrees a different basis with You, Fees shall be paid as follows:
3.2.1 In the case of Services provided on a periodic basis (e.g. weekly, monthly, quarterly or annually) the Fees shall be paid by You at the same time as Your order and then again on the commencement of each subsequent period.
3.2.2 In the case of one-time services the Fees shall be paid by You at the same time as Your order. 3.3.1 SMS shall have the right to change the Fees at any time. Before any proposed change becomes effective, SMS shall use reasonable endeavours to e-mail Your Administrator fourteen days notice of any such change. Such changes shall also be notified on the SMS website.
3.3.2 In the case of Services provided on a periodic basis such changed Fees will apply from the beginning of the next period after the change has been notified.
3.3.3 Your payment of any changed Fees shall constitute Your acceptance of such Fees.
4. YOUR RESPONSIBILITIES
4.1 You represent, warrant and undertake that at all times You have the right, authority and any required permission and consents to enter into this Agreement and that Your Administrator has the power to exercise such right, authority, permission and consents on Your behalf.
4.2 You shall at all times keep up-to date the details of Your Administrator (being the person who has control of the e-mail address and other details designated as "sales contact" on the Your Profile) so that contact can at all times be made with You.
4.4 You shall abide by the Service Guidelines, which set out the guidelines, policies and standards relating to all Content on SMS.
4.5 By using a Service You warrant, represent and undertake that at all times the Content that You provide for use in SMS and Your Profile is:
4.5.1 accurate, complete, up-to-date and honest;
4.5.2 in a suitable format, provided using fully licensed software and free from harmful viruses;
4.5.3 not in breach of any applicable advertising, sales or marketing laws, regulations, as may be revised from time to time, or any other codes of advertising standards laid down on a statutory or a self regulatory basis for the regulation of any relevant advertising industry;
4.5.4 not indecent, offensive, prejudicial, inflammatory, defamatory, blasphemous or racially abusive; 4.5.5 not likely to expose SMS to claims, result in SMS’ prosecution, cause SMS to infringe the legal rights of any third party, or cause SMS embarrassment or distress of any kind;
4.5.6 not in breach of any other law, statute, statutory instrument or regulation in any relevant jurisdiction;
4.5.7 Your intellectual property or have validly been licensed to You in such a way as permits SMS to use them on Your behalf in SMS Profile and You authorise SMS to hold, reproduce, publish, adapt, transmit and disclose such Content;
4.5.8 not at any time or in any manner an infringement of any copyright, design right, database right, patent, trade mark, trade secret or any other intellectual property or proprietary rights (whether registered or unregistered) of any third party or any rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world - on request You shall provide us with suitable documentary evidence that will reasonably satisfy us of Your entitlement to make use of any of Your Content or to make enquiries of a third party as to Your entitlement to use such content (for example trademarks, logos etc);
4.6 Except as expressly authorised by SMS in writing or to the extent that such activity is permitted by law You shall not, and shall not permit anyone to:
4.6.1 in any way tamper with, reverse engineer or otherwise copy, adapt, lease, lend, distribute, sell, sub- license, or otherwise transfer any the SMS software or its functionality, all the intellectual property rights to which belong to SMS or its licensors;
4.6.2 copy, sub-license, distribute sell, or publish any of the Content of the SMS.
4.6.3 interfere or attempt to interfere with the proper operation of the SMS;
4.6.4 grant or allow access to the SMS or Your Services to any person other than a person employed by You who has been authorised by You to carry out Your tasks pursuant to this Agreement and then only for as long as SMS is satisfied that they are that person;
4.6.5 use SMS or its Content other than as expressly permitted by this Agreement;
4.6.6 resell any Service which You have purchased or are entitled to use.
4.7 SMS shall co-operate fully with investigations of violations of systems or security networks or security at other sites and with law enforcement authorities in the investigation of possible criminal violations. If You violate any systems and/or network security, You may also incur other criminal or civil liability.
4.8.1 SMS reserves the right to remove all Your listings, advertising or other Materials if in its absolute discretion it considers You to be in breach of Clauses 4.4, 4.5 or 4.6.
4.8.2 Whether or not SMS exercises its rights under Clause 4.8.1, You shall indemnify, defend and hold SMS harmless for all liability, claims, damages and costs, including reasonable legal expenses, arising out of or in connection with a breach by You of Your obligations, representations and warranties in these Service Conditions.
4.8.3 You shall not be liable if You cannot perform any of Your obligations under this Agreement because of circumstances beyond Your reasonable control such as technical failure, severe weather, fire or explosion, civil disorder, war, or military operations, natural or local emergency, anything done by government or other competent authority or industrial disputes of any kind.
4.8.4 Nothing in this Agreement affects Your liability for fraudulent misrepresentation.
5. SMS’ RESPONSIBILITIES
5.1.1 SMS (and any Content made available through them) are provided on "As Is" and "As and When Available" basis. Whilst SMS shall use all reasonable skill and care in the creation and supply of SMS Profiles, SMS does not give any guarantee or warranty as to their suitability, availability, accuracy, freedom from fault, freedom from viruses or other impairing or harmful components or fitness for any purpose.
5.1.2 SMS shall run commercially available virus detection and correction software and shall endeavour to ensure that errors are not service affecting and to correct reported faults as soon as it reasonably can. If a fault occurs, You should report the fault to SMS (see the Support page on www.maritimeshipsuppliers.com).
5.1.3 SMS may need to temporarily suspend the whole or any part of the Services from time to time but shall give You as much notice as is reasonably practicable in the circumstances.
5.1.4 Except as expressly set out in this Agreement, all warranties, conditions or other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
5.2. Subject to Clause 5.4, SMS accepts no liability in contract or tort (including liability for negligence) for loss of business revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect, special or consequential loss or damage (including punitive damages).
5.3.1 Subject to Clause 5.4, in any event SMS’ liability to You under or in connection with this Agreement shall be limited to the lowest of (a) the sum validly claimed by You, (b) the total amount of the Fees paid by You for Your Services during the six month period immediately prior to the date on which the liability first arose or, if none, $250 (c) any sum calculated under Clause 5.3.2.
5.3.2 Where one incident gives rise to claims by more than one claimant in respect of SMS, SMS’ liability to all such claimants arising out of such incident shall be limited to US$50,000, which shall be shared between them pro rata. In calculating such prorating, the amount considered in respect of Your claim shall be the lesser of the sums referred to in Clauses 5.3.1(a) and 5.3.1 (b).
5.4 SMS does not limit or exclude its liability for death or personal injury caused by its negligence or any other liability to the extent that such a limitation or exclusion is prohibited by law.
5.5 SMS shall not be liable if it cannot perform any of its obligations under this Agreement because of circumstances beyond its reasonable control such as those referred to in Clause 4.8.3.
5.6. Nothing in this Agreement affects the liability of SMS for fraudulent misrepresentation.
6. DURATION & TERMINATION
6.1 In the case of periodic services,
6.1.1 Such Services are provided by SMS for the specified period from the first date on which You make payment to SMS or from any other agreed date.
6.1.2 Thereafter, this Agreement shall continue indefinitely so long as You continue to pay the Fees or unless one of the Parties terminates this Agreement in accordance with these Service Conditions. 6.1.3 You or SMS may, by at least thirty days notice in advance, elect not to renew Your contract with SMS at the anniversary of the periodic service.
6.1.4 If You are using an on-going free of charge Service this Agreement shall commence on the date that You first used the Services. In such a case You or SMS may, by at least thirty days notice, terminate this Agreement at any time.
6.2 In the case of one-time services this Agreement shall terminate upon the later of completion by SMS of such services and receipt of payment in cleared funds from You of all Fees that are due in relation to them.
6.3 Notwithstanding any other rights elsewhere in this Agreement, one Party may terminate this Agreement immediately where the other Party is in breach of its obligations.
6.4. This Agreement shall terminate immediately if You are made bankrupt, enter into liquidation or any arrangement or composition with Your creditors or if a receiver or administrator or similar official is appointed against any of Your assets or business.
7.1 This Agreement shall be governed by English law.
7.2.1 The Parties shall attempt to settle in good faith any dispute or difference which arises between them out of or in connection with this Agreement, by negotiations.
7.2.2 In the event of failure of such negotiations, the Parties shall use a formal mediation procedure in accordance with London Maritime Arbitrators Association ("LMAA") Mediation Terms current at the time of the dispute (these may be found at www.lmaa.org.uk). Such mediation shall take place at a venue to be agreed by the Parties and, failing agreement, in London, UK. Each Party shall bear its own costs incurred in the mediation proceedings and one half of the fees and expenses of the mediator.
7.2.3 If such mediation is unsuccessful, each Party shall submit to the non-exclusive jurisdiction of the English Courts.
8.1.1 You may not assign or try to assign or otherwise deal with any of Your rights and obligations under this Agreement without SMS’ prior written consent.
8.1.2 SMS may assign or sub-contract all or any of SMS’ rights and obligations under this Agreement to any third party.
8.2. Any notice under this Agreement may be sent by letter, fax or e-mail to Your Administrator or to SMS Customer Support (details may be found on the Home Page page of www.sustainablemaritimesuppliers.com), as the case may be.
8.3 A Party's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between You and SMS nor trade practice shall act to modify any provision of this Agreement.
8.4 If any provision of this Agreement is held to be invalid or unenforceable, all other provisions of this Agreement shall remain in full force and effect. © SMS March 2015 - Version 2015-01