NAVGARD

Navgard.com Data End User License Agreement (“DEULA”)

IMPORTANT: PLEASE READ THIS NAVGARD.COM DATA END USER LICENSE AGREEMENT (“DEULA”) BEFORE DOWNLOADING, INSTALLING, ACCESSING, OR USING THE DATA. THIS DEULA IS A BINDING AGREEMENT BETWEEN YOU, THE LEGAL ENTITY OR ENTITIES CONTROLLING THE RIGHT TO USE THE SYSTEM ON WHICH THE DATA WILL BE USED (“YOU”), AND NAVGARD.COM (“NAVGARD”). NAVGARD RESERVES THE RIGHT TO CHANGE OR MODIFY ANY OF THE TERMS AND CONDITIONS OF THIS DEULA AT ANY TIME WITHOUT NOTICE TO YOU. PLEASE NOTE THAT IF THE DATA IS TO BE USED ONBOARD A VESSEL AND YOU ARE NOT THE OWNER OF THE VESSEL AND/OR IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS DEULA ON THEIR BEHALF. YOU ARE RESPONSIBLE FOR THE ACTIONS OF ANY END USERS (WHETHER EMPLOYEES, CONTRACTORS, OR OTHERWISE) RELATED TO THE OBJECT OF THIS DEULA AND THEIR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS DEULA. BY DOWNLOADING, INSTALLING, ACCESSING, OR USING THE DATA, YOU AGREE TO THE TERMS OF THIS DEULA IN ITS ENTIRETY, INCLUDING THE RESTRICTIONS ON USE, LIMITED WARRANTY, AND DISCLAIMER, AMONG OTHER THINGS.

Please note that the terms and conditions set out in Section I (Terms and Conditions) below apply to all Navgard Proprietary Data, Materials, and Services supplied to You, whereas Section II (Additional Terms and Conditions) is applicable to all other Data excluding Navgard Proprietary Data. The terms and conditions set out in this DEULA supersede all other documents concerning the Data, Materials, and Services, including previous versions of this DEULA.

I. TERMS AND CONDITIONS

1. NAVGARD OWNERSHIP AND COPYRIGHT

The Data and certain Materials (including any maritime maneuver risk assessment tools, methodologies, and outputs) may be protected by copyright, database rights, and other neighboring rights. Except as expressly allowed by mandatory law, such protected works may not be copied, reproduced, translated, modified, adapted, reversed-engineered, decompiled, stored in a retrieval system, or retransmitted in whole or in part, in any form or by any means.

This DEULA does not grant You any rights in connection with any trademarks or service marks of Navgard. All rights not expressly granted are reserved by Navgard and/or its authorized third-party licensors. Navgard and/or its third-party licensors shall retain all rights, title, and interest in the copyrights, database rights, patents, trade secrets, trademarks, service marks, design rights, proprietary information rights, and other intellectual property rights as may exist anywhere in the world in the Data.

2. LICENSE GRANT AND RESTRICTIONS

Provided You have paid for the service in full, Navgard grants to You a non-transferable, personal, and non-exclusive right to use the Data, Materials, and Services solely for Your own internal business purposes (e.g., internal training, analysis, risk assessment, and decision-making) and not in support of any other third party or any product or service that competes with Navgard (“License”). The Data may be used solely as an aid in maritime maneuver risk assessment or related operations and not as the sole or primary source of navigational or operational information.

You shall not use the Data to develop or enhance a competing product or service, nor shall You provide the Data as a paid or free service to any third party without Navgard’s prior written consent. Any unauthorized use outside the scope of this License is strictly prohibited.

The term of the License can be either:

  • A “One Off” perpetual license, or
  • A subscription license (a “Subscription”) that entitles You to regular updates of the Data during the Subscription period.

Unless otherwise specified, upon the end of a Subscription period, Your Subscription will be automatically renewed for new consecutive periods of Subscription unless You give Navgard a notice of termination no less than three (3) months prior to the expiry of the then-current Subscription period.

The Data You are about to load is licensed, not sold. The validity of the License depends on Your and Your end-users’ compliance with the terms and conditions set forth in this DEULA.

Vessel Use
If You have acquired this License for use on a vessel, one (1) License gives You the right to use the Data on one (1) integrated bridge system for which You have an exclusive right to use, with a maximum of eight (8) nodes connected to such integrated bridge system.

Office or Land-Based Use
If You have acquired this License for “office” or “land-based” use only, one (1) License gives You the right to use the Data on one (1) single computer at a time for which You have an exclusive right to use. The Data is considered “in use” on a computer (including an integrated bridge system) when it is loaded into the temporary memory (i.e., RAM) of that computer.

3. ADDITIONAL RESTRICTIONS ON USE

Except for the initial loading and other operations necessary for the legal utilization of the Data, You shall not:

  • Copy, duplicate, reproduce, or publish the Data or the Materials or any of their contents;
  • Electronically transfer the Data or the contents of the Materials to multiple computers over a network;
  • Distribute copies of the Data or the Materials to others by any means whatsoever;
  • In whole or in part, change, modify, adapt, translate, reverse engineer, disassemble, or decompile the Data or the Materials, or create derivative works based on the Data or the Materials;
  • Assign, rent, exchange, hire out, lend, lease, or sublease the Data or the Materials or any copies thereof;
  • Sell or transfer the Data or the Materials or any copies thereof;
  • Bundle, re-package, or include the Data or the Materials with any software in any way; or
  • Use the Data to develop or improve a competing product or service without Navgard’s prior written consent.

Any unauthorized reproduction, use, or transfer of the Data and the Materials may be a violation of law and may subject You to damages and attorneys’ fees.

4. TERMINATION

In addition to Your right to terminate a renewal of a Subscription pursuant to Clause 2 above, and without prejudice to any other rights governed by this DEULA, the License to use the Data and the Materials, and any right to receive Services granted under this DEULA, will automatically terminate if You fail to comply with any term of this DEULA or if You fail to comply with any mandatory law applicable to Your use of the Data.

In the event of termination, You will not be entitled to reimbursement of any fees already paid to Navgard, but You will remain liable for payment of any amounts due to Navgard.

5. WARNING

YOU ACKNOWLEDGE, SHALL COMPLY WITH, AND TAKE INTO CONSIDERATION THE FOLLOWING WARNINGS FROM NAVGARD, AND DULY INFORM YOUR END USERS RESPONSIBLE FOR THE USE OF THE DATA OF THESE WARNINGS:

  • MARITIME OPERATIONS INVOLVE INHERENT RISKS. Maneuvering a vessel or conducting port calls should only be done by individuals with the necessary competency, training, and experience.
  • SAFE BERTH, SAFE PORT, AND SAFE NAVIGATION depend on a multitude of factors, including but not limited to weather conditions, ship type, crew skill, local regulations, and any other potential impediments.
  • THE DATA MAY BE SUBJECT TO RAPID CHANGE AND IS NOT GUARANTEED TO BE ACCURATE, COMPLETE, OR UP-TO-DATE. You must not rely on it as your sole or primary source of information for maritime operations or risk assessments.
  • UNLESS OTHERWISE STATED, THE DATA IS INTENDED ONLY AS AN AID for maritime maneuver risk assessment and in no way replaces the end user’s professional judgment, training, or diligence.
  • THE DATA MAY NOT CONTAIN ALL NECESSARY INFORMATION OR REFLECT REAL-TIME CHANGES. Cross-reference with official and up-to-date sources.
  • THE DATA IS DESIGNED TO INFORM RISK DECISION-MAKING ABOUT MARITIME MANEUVERS, NOT TO GUARANTEE SAFE USAGE.
  • THE DATA MAY BE BASED ON THIRD-PARTY SOURCES. Navgard shall under no circumstances be liable for defects due to incorrect or missing information from such sources.
  • NO DATA SHOULD BE USED ON ANY SINGLE-HULL VESSEL, in violation of IMO MARPOL rules, or on any vessel classified as a Very Large Crude Carrier weighing more than 140,000 tons.

6. DISCLAIMER

THE DATA AND ANY RELATED TOOL OR SERVICE IS PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND.

NAVGARD DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, ACCURACY, TIMELINESS, SECURITY, RELIABILITY, OR COMPLETENESS OF THE DATA. ANY RELIANCE UPON THE DATA IS AT YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE DATA AND DETERMINING ITS APPROPRIATENESS FOR YOUR INTENDED USE. THE DATA IS INADEQUATE AS A PRIMARY MEANS OF NAVIGATION, PORT CALLING, OR MARITIME MANEUVERING.

NAVGARD MAKES NO EXPRESS OR IMPLIED WARRANTY and disclaims any liability for:

  • The Data, including any errors, omissions, or inaccuracies;
  • The accuracy of any source materials utilized in creating the Data; and
  • Any nonconformance or defect in the design, adequacy, accuracy, reliability, or safety (including compliance with governmental regulations or standards).

This disclaimer includes, but is not limited to, any express or implied warranty of merchantability or fitness for a particular purpose. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to You. However, You shall inform Navgard in due time if any provision may be overruled by any applicable mandatory rules.

The limited warranties and other obligations and liabilities of Navgard, and Your remedies set forth in this DEULA, are exclusive and in substitution for any other rights, claims, and remedies You would otherwise have against Navgard with respect to the Data, the Materials, or the Services provided hereunder. This DEULA establishes the sole and exclusive remedies available to You.

If You encounter any problems with the Data or discover a suspected error, You should report such problems or suspected errors to Navgard as soon as reasonably possible.

7. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, NAVGARD SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, including, without limitation, damages for loss of use, loss of revenue or profit, loss of data, business interruption, or any other financial loss, whether in contract, tort, or otherwise, arising out of or in connection with the use of, or inability to use, the Data, the Materials, or the Services provided under this DEULA, even if Navgard has been advised of the possibility of such damages.

IN ANY CASE, NAVGARD’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS DEULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE DATA DURING THE MOST RECENT TWELVE (12) CALENDAR MONTHS. THESE LIMITATIONS OF LIABILITY DO NOT APPLY IF NAVGARD HAS ACTED WITH GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

You acknowledge that the limitations set forth in this section are integral to the fees charged hereunder and recognize that were Navgard to assume any further liability beyond that set forth in this section, such fees would be substantially higher.

If a court of competent jurisdiction determines that relevant laws in force may imply warranties or liabilities which cannot be excluded or limited, or can only partly be excluded or limited, then the limit on Navgard’s liability set forth in this DEULA shall apply to the fullest extent permitted by law. If Navgard cannot exclude or limit a warranty or liability implied by law, this DEULA shall be read and construed subject to such provisions of law.

8. INDEMNIFICATION

You shall defend, indemnify, and hold harmless Navgard from and against all claims, liabilities, damages, losses, judgments, costs, and expenses (including attorneys’ fees and expert witnesses’ costs) arising out of or related to (i) Your use of the Data provided hereunder; (ii) any breach of this DEULA by You or Your end users; and (iii) any claim from third parties, including vessel owners, operators, managers, cargo owners, or insurers, related to the use or misuse of the Data by You or Your end users, except to the extent caused by Navgard’s gross negligence or willful misconduct. Your obligations under this indemnity shall survive the termination of this DEULA and any Subscription Agreement related hereto.

9. EXPORT COMPLIANCE

You shall be responsible for Your compliance with any applicable export control restrictions, laws, and regulations (as may be modified from time to time) imposed by the government of the United States and, if applicable, the governments of other countries. You shall not attempt to, or knowingly export or re-export, any Data, Materials, or Services covered under this DEULA to any country (or national thereof) prohibited from obtaining such Data, Materials, or Services, either directly or indirectly. You shall, at Your sole cost and expense, obtain and maintain in effect all permits, licenses, and other consents necessary to conduct Your respective activities hereunder.

10. AUDIT

Navgard shall have the right, upon reasonable prior notice and during normal business hours, to audit Your compliance with this DEULA. You agree to grant Navgard or its authorized representatives access to vessels, premises, records, and other relevant information necessary for such audit. If an audit reveals unauthorized use of the Data or other material non-compliance, You shall promptly (i) pay any amounts owed for unauthorized usage, (ii) reimburse Navgard for any reasonable costs of conducting the audit if such audit reveals material non-compliance, and (iii) take all necessary measures to remedy the non-compliance. Failure to cooperate with an audit request constitutes a material breach of this DEULA.

11. ASSIGNMENT

Navgard may assign and transfer all its rights and obligations under this DEULA to any third party without notice to You. You may not assign or transfer Your rights or obligations without the prior written consent of Navgard.

12. GOVERNING LAW AND LEGAL VENUE

This DEULA shall be governed and construed in accordance with the laws of Canada, without regard to its conflicts of laws provisions. Any dispute, controversy, or claim arising out of or relating to this DEULA, or the breach thereof, shall be finally settled by the competent commercial court in Vancouver, British Columbia, Canada.

13. AMENDMENTS

Navgard reserves the right to change or modify any of the terms and conditions of this DEULA at any time without notice to You. Any changes or modifications to the terms and conditions will be effective on the date such change or modification is made and will be provided to You with the next Data update for Your acceptance prior to downloading, installing, accessing, or using the updated Data. If You do not accept the changes, Navgard may terminate Your right to continue receiving or using the Data and updates.

14. FORCE MAJEURE

Navgard shall not be liable for any delay or failure to perform its obligations under this DEULA to the extent such delay or failure results from events beyond its reasonable control, including, without limitation, acts of God, fires, floods, earthquakes, strikes, labor disputes, accidents, war, terrorism, government actions, epidemic, pandemic, or other similar causes. Navgard’s obligations shall be suspended during the period of such circumstances and shall resume as soon as they are able to be performed without hindrance.

II. ADDITIONAL TERMS AND CONDITIONS

Third-Party Data is reproduced with the permission of various sources and is protected by copyright. The Data is derived, in part, from material provided with the permission of such third parties (the “Licensors”). Navgard is an authorized user and licensee of data under separate agreements with the Licensors. All rights are reserved by the respective Licensors, and copyright restrictions apply. The information may not be modified or exploited by reverse engineering of formats and encryption, or copied, reproduced, translated, or reduced to any electronic medium or machine-readable form, in whole or in part.

No Licensor has verified the Data, nor does any Licensor accept liability for the accuracy of reproduction or for any modifications that may have been made to the information supplied. Furthermore, no Licensor warrants that the Data meets any specific regulations as an appropriate product for navigation or that it contains the latest hydrographic, navigational, or environmental information available. Updates may be available from Navgard. The Data licensed hereunder is inadequate as a primary means of port calling or maritime maneuvering and should be used only as a supplement to official data and traditional navigation methods. As always, the master of the vessel (or other relevant officer) is responsible for its proper use and for maintaining awareness of current conditions.

BY DOWNLOADING, INSTALLING, ACCESSING, OR USING THE DATA, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS DEULA AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

END OF DEULA