OVERWATCH TERMS AND CONDITIONS

Your Subscription to the Platform

Subscription: During the Subscription Term your Subscription provides you with the right to access and use the Subscribed Products specified in the Order Form in respect of those vessels stated in the Order Form.

Subscription Term: Your Subscription starts as soon as the Order Form takes effect (or such later start date set out in the Order Form). Your Subscription will continue until either party terminates the Subscription under clause 2.3, but will not be less than the minimum term set out in the Order Form (or if no minimum term is set out in the Order Form, then the minimum term will be 24 months) (the Minimum Term).

Termination of Subscription: Either party may terminate the Subscription without cause on not less than 30 days’ prior written notice ending at any time after the Minimum Term ends.

Changes to Subscription: For each Subscribed Product, if you exceed any usage limits under the Agreement (such as exceeding the number of vessels the Subscribed Products can be used for under your Subscription or if you exceed the number of User Licences provided under your Subscription) we may charge you additional fees. Unless stated otherwise in the Order Form, those additional fees will be based on our standard list prices at the relevant time.

Expiry or termination of Subscription: If the Agreement is terminated (including under clause 12), your Subscription will end immediately. In either case, when your Subscription ends, you must cease all use of the Subscribed Products (and return any Devices in accordance with clause 6.9). If and to the extent we allow you access to the Platform without a current Subscription, or after your Subscription has expired, you must comply with these Terms, but we have no obligations or liability to you in relation to that access or usage, and we can withdraw your access at any time without notice.

Your use of the Platform

Use of Platform: Unless stated otherwise in your Order Form, you must ensure your Users use the Platform solely in respect of the vessel(s) set out in the Order Form for your internal business purposes.

User Licences: You must ensure that the total number of active accounts for your Subscribed Products does not exceed 10 User Licences (or such greater number of User Licenses provided by your Subscription as stated in your Order Form). An account is ‘active’ if it can be used to log in to the Subscribed Product, whether or not it is actually used.

User accounts: You must ensure each User has their own account for the Subscribed Product, and that Users do not share accounts.

Unauthorised access: You must use reasonable efforts to prevent unauthorised access to, or use or disclosure of, the Platform. You must promptly notify us on becoming aware of any unauthorised access or use. You must, on request, provide us with reasonable assistance to investigate and remedy that unauthorised access, use or disclosure.

Updates and new releases: You must, and ensure your Users will, promptly install any upgrades or new releases of the Platform which we make available to you.

Restrictions on use: You must not (and must ensure your Users will not):

1. use the Platform in violation of any Law;
2. use the Platform to send or store infringing, obscene, threatening, or otherwise unlawful material;
3. use the Platform to send or store malicious code of any kind;
4. reverse engineer, copy or modify (or allow any third party to reverse engineer, copy or modify) any part of the Platform or Documentation;
5. sublicense, resell, lease, assign, transfer or otherwise make the Platform or Documentation available to any third party except as expressly authorised by the terms of the Agreement;
6. knowingly interfere with or disrupt the operation of the Platform; or
7. use the Platform or its related systems or networks in a manner inconsistent with your Subscription or the Documentation.

Responsibility for Users: You are responsible under the Agreement for all of your Users. For the purposes of the Agreement, their acts and omissions will be treated as your own.

Third Party Services: The Platform may provide you with the access to services or content being provided by one or more third parties (“Third Party Services”). We have no obligations or liability in relation to Third Party Services, and any warranties given under the Agreement do not apply to Third Party Services. You may be required to accept additional terms in order to access Third Party Services through the Platform. Once accepted, those additional terms will apply to the Third Party Services alongside the terms of the Agreement, and will prevail over the Agreement in relation to the relevant Third Party Services.

Fees and payment

Fees: You must pay the fees specified in the Order Form. Unless stated otherwise in the Order Form, all fees are quoted and payable in US Dollars.

Changing fees: We can change the fees for your Subscription on 60 days’ prior written notice to you. But you may exercise your right to terminate the Subscription without cause under clause 2.3. We will not increase our fees during the Minimum Term.

Payment and invoicing: Unless stated otherwise in the Order Form:

1. the fees for your Subscription are payable in equal monthly instalments payable monthly in advance;
2. we will email invoices to you at the email address provided in the Order Form, or any replacement email address that you subsequently notify to us. You will be deemed to have received the invoice the next business day after sending; and
3. amounts invoiced to you are due for payment 30 days after receipt of the invoice.

Method of payment: If agreed in the Order Form, we will charge you the fees automatically using the authorised form of payment set out in the Order Form (for example credit card payment or direct debit authority).

Taxes: Unless expressly stated otherwise in an Order Form, you are responsible for all Taxes. If we have a legal obligation to pay or collect any taxes, then we can invoice, and you must pay, those taxes in addition to and on the same terms as the corresponding fees. If you have a legal obligation to withhold or deduct any taxes from amounts payable to us under these Terms, you must pay us any additional amount needed to ensure we receive the same amount we would receive in the absence of the withholding or deduction.

Default interest: If you fail to pay an amount due under the Agreement by the applicable due date, you must pay us interest on the overdue amount, at a rate of 1.5% per month (or, if lower, the maximum rate allowable under applicable law), calculated daily and compounding monthly, from the due date up to but excluding the date of payment.

Suspension: Except for amounts subject to a reasonable and good faith dispute, if a payment remains unpaid 30 days after receipt of the invoice and we have provided you with at least 30 days’ notice, we may suspend your access to the Platform, without any liability to you. We will lift the suspension once all overdue amounts have been paid in full.

Payments are non-refundable: Except as expressly stated otherwise in the Agreement all payments are non-refundable.

Rights in the Platform, Documents and Data

Modifying Platform: We can modify the Platform at any time, subject only to the restrictions expressly set out in the Agreement.

Ownership of Platform and Documentation: As between you and us, we retain ownership of all rights in the Platform and Documentation. You must not use the Platform or Documentation except as expressly authorised by the terms of the Agreement.

Ownership of Data: You retain ownership of all rights in your Data. We and our Suppliers can Process your Data in order to provide you with the Subscribed Products during the Subscription Term. We can also Process your Data for the purpose of developing our existing products and services, creating new products and services and otherwise, so long as the Data is used on an anonymised basis, for any other purpose we see fit. You must ensure you have all rights, licences and consents (including in relation to personal information) needed in relation to your Data to ensure that our Processing as permitted by the Agreement does not violate any Law or third party rights or otherwise expose us to any legal liability.

Feedback: If you provide us with feedback on the Platform or Documentation (including suggestions, designs or otherwise), we are free to re-use it and commercialise it without restriction, and without the need for any further permission or payment. You must ensure your feedback is not subject to any third party rights that might require such a permission or payment. You are not required to provide Feedback, and we are not required to use it.

Personal information: You must ensure your Data does not include any personal information about an identifiable individual, other than the names and business contact details of your Users.

Data indemnity: You indemnify us against all losses, damages, liabilities and/or costs arising from any claim or action brought by a third party alleging that our Processing of your Data as permitted by this Agreement violates any Law or third party rights or otherwise exposes us to any legal liability. We will take reasonable steps to mitigate our liability for any such claim or action.

Use of your name and logo: We may use your name and logo in customer lists, and on our website, but only to identify you as an entity that uses the Platform. If requested by you, we will remove your name and logo from our public website. You must not use our name or logo without our prior written consent.

Leased Devices

Devices: Your Subscription includes the lease of one or more Devices for the Subscription Term as specified in an Order Form. The Devices are leased to you on the terms of the Agreement, and remain our property. The lease of the Devices is included in the Subscription fees. These Devices may only be installed on the vessels stated in your Order Form.

Installation of Devices by us: Unless stated otherwise in the Order Form we will be responsible for arranging the installation of the Devices on your vessels and the following terms will apply:

1. we may install the Devices on your vessels ourselves or using our agents or subcontractors (the Installer);
2. you will provide the Installer with reasonable access to your vessel(s) at the time and location agreed between you and us in writing to install the Devices;
3. we will make reasonable efforts to ensure the Devices are installed at the agreed times. However, we will not be responsible for any delays beyond our direct control;
4. you will provide any reasonable assistance and information the Installer requests in relation to the installation of the Devices and follow any reasonable instructions of the Installer relating to the installation of the Devices;
5. the Installer will comply with any health and safety policies and procedures you have in place for the vessel(s) which you have given the Installer prior written notice of;
6. you and the Installer will comply with all applicable laws in relation to the installation of the Devices;
7. the Installer will exercise reasonable skill, care and due diligence in installing the Devices;
8. you will pay us the installation fee set out in the Order Form, you must pay this amount in addition to and on the same terms as the Subscription fees; and
9. the installation of the Devices by the Installer is otherwise subject to these Terms (including clauses 10.2, 10.3 and 11) and/or any other terms reasonably required by the Installer.

Installation of Devices by you: If the Order Form states that you are responsible for installing the Devices on your vessels then you will, at your cost, install the Devices in accordance with our Documentation and written instructions.

Supply of Devices: If the Order Form states that you are responsible for installing the Devices on the vessels then:

1. we will arrange for the Devices to be shipped to you at the delivery location stated in the Order Form. We will make reasonable efforts to ensure shipping is arranged to meet any delivery timeframes stated in the Order Form. However, we will not be responsible for any delays beyond our direct control (including delays by our logistics providers or carriers and any border-related delays).
2. Unless stated otherwise in an Order Form, all freight, insurance costs, tariffs and customs charges incurred in shipping the Devices to you are included in your Subscription fees. If an Order Form provides that you are responsible for any or all of these charges, we can invoice, and you must pay, those amounts in addition to and on the same terms as the Subscription fees.

Use of Devices: You must use the Devices in accordance with our Documentation and written instructions. You must use the Devices solely to collect data in accordance with your chosen Subscription. If you use Devices to collect data outside the scope of the Subscription agreed in the Order Form, we may require you to switch to a different Subscription. You are responsible for ensuring that each Device is used safely and in compliance with all applicable Laws.

Risk in Devices: All risk in the Devices is with you, starting from the time they are delivered to you (or where we are responsible for installing the Devices, from the date the Devices are installed on your vessel(s)), and ending when they have been returned to us. If any Device is lost, stolen, damaged or destroyed during that period, you must pay us the replacement fee specified in the Order Form, or if none is specified, our then-current retail price for the relevant Device.

Notification of loss or damage to Devices: You must notify us within 24 hours if any Device is lost, stolen, damaged or destroyed. If a Device is damaged or malfunctioning, you must promptly return it to us. You must not in any circumstances attempt to repair a Device yourself or have a third party repair it.

Repair or replacement of malfunctioning Devices: We will, during the Subscription Term (at our option) repair or replace any malfunctioning Device. We will cover the cost of repairing or replacing a malfunctioning Device except to the extent that the malfunctioning was caused by your care or use of the Device other than in accordance with the Agreement.

Return of Devices: You must return all Devices to us within 10 business days following the end of the Subscription Term. You are responsible for all costs of return, including freight, duties, customs charges, tariffs and insurance.

Backing up of Data: You are responsible for saving and backing up any data collected by each Device before returning the Device to us. On return, we will delete all data from the Device and perform a factory reset of the Device.

Failure to return Devices: If you fail to return a Device to us within 60 days of the end of the Subscription Term we can charge you the full price for a new replacement for the Device, at our then-current list price as set by us.

Recovery of Devices: We may enter any premises or board any vessel owned or occupied by you and uplift any Device for which the Subscription Term has ended. To the extent permitted by law we will not be liable for any loss you incur as a result of our actions.

Indemnity for Third Party IP Claims

Third Party IP Claim Indemnity: Subject to the terms of this clause 7, we will indemnify you against all losses, damages, liabilities and/or costs directly arising from any Third Party IP Claim. This indemnity will not apply to the extent that the infringement alleged in the Third Party IP Claim is attributable to:

1. your Data;
2. your breach of the Agreement;
3. any use, copying or modification by you of the Platform or Documentation in a manner not authorised by the Agreement.

Notification of Third Party IP Claim: We will have no liability for a Third Party IP Claim unless you notify us promptly on becoming aware of the Third Party IP Claim, give us a reasonable opportunity to take over the conduct of the Third Party IP Claim, and refrain from making any admission or settlement in relation to the Third Party IP Claim except where we fail to take over accordingly.

Conduct of Third Party IP Claim: If we take over the conduct of the Third Party IP Claim, you must provide all assistance and co-operation reasonably requested by us for the purposes of any related negotiations or litigation, in which case we will compensate you for your reasonable internal staff time and external expenses incurred for that purpose.

Confidentiality

Each party will keep the Confidential Information of the other party confidential at all times and will not use or disclose that Confidential Information except to the extent that use or disclosure is:

1. reasonably required to perform the receiving party’s obligations or take the intended benefit of its rights under the Agreement;
2. to the receiving party’s personnel, agents, subcontractors or professional advisors with a need to know (and the receiving party must ensure those persons, prior to receiving any confidential information, have agreed to be bound by obligations of confidence materially consistent with this clause 8);
3. required by law or the rules of any relevant stock exchange (provided that the disclosing party notifies the other party prior to disclosure (except where prohibited by law);
4. is in the public domain, other than because of the receiving party’s breach of these Terms; or
5. authorised in writing by the other party.

Protecting your Data

Reasonable safeguards: We will implement and maintain reasonable technical and organisational safeguards to protect your Data against Data Breach, and to protect against vulnerabilities in our systems that could be leveraged to compromise your systems.

Use of your Data: Except as required by Law, we will not use or disclose your Data except for the purpose of operating the Platform for your use or otherwise as permitted by this Agreement.

Data Breaches: If we become aware of a Data Breach, we will notify you as soon as reasonably practicable, take all reasonably practicable steps to halt the Data Breach, and reasonably co-operate with your investigation of the Data Breach as you reasonably consider necessary to enable you to meet your obligations under applicable Laws.

Product Warranty

Product warranties: We warrant that during the Subscription Term:

1. the Subscribed Products will conform with the Documentation in all material respects; and
2. we will not make any changes to the Subscribed Products or Documentation that we expect to materially decrease the functionality or performance of the Subscribed Products.

No other warranties: We give no warranties other than those set out in clause 10.1 or otherwise set out in the Agreement. To the maximum extent permitted by law, we specifically exclude all other warranties, including any warranties of merchantability or fitness for a particular use or purpose, whether arising by law, custom, usage in trade, or course of dealing. We do not warrant that the Subscribed Products will be error free or operate without interruption.

Consumer protection legislation: You and we agree that where you acquire the Subscription in trade that it is fair and reasonable that, to the maximum extent permitted by law, no consumer protection legislation in any jurisdiction applies.

Liability

Maximum liability: Our total aggregate liability to you under or in connection with the Agreement for:

1. any claim under the indemnity in clause 7.1 or any Information Security Breaches, will not exceed three times the sum of all fees paid under the Agreement for that Contract Year; and
2. for all other events that occur in any Contract Year, will not exceed the sum of all fees paid under the Agreement for that Contract Year.

Limitations: Neither party has any liability to the other under or in connection with the Agreement for any loss of profits, anticipated savings, business opportunity or goodwill, or for any indirect, consequential, special, incidental or punitive losses or damages.

Exceptions: The limitations and exclusions in this clause 11 do not apply to:

1. any liability that cannot lawfully be limited or excluded by contract; or
2. any liability either Party may have for fraud or wilful default.

Basis for limitations: The limitations and exclusions in this clause 11 apply irrespective of the basis of the claim, including in contract, tort (including negligence), equity, under any Law or otherwise.

Termination

Termination for breach: Either party can terminate the Agreement by giving notice to the other party if the other party:

1. has committed a material breach of the Agreement, and the breach either is not capable of being remedied or remains unremedied 30 days after the other party receives notice from the terminating party requiring it to remedy the breach;
2. goes into liquidation, statutory management, receivership, voluntary administration or is dissolved (other than for the purposes of a solvent reconstruction) or is subject to any analogous event in the relevant jurisdiction.

Effect of termination: The following will apply if the Agreement is terminated or expires for any reason:

1. if requested by the other party, each party will promptly destroy or deliver to the other party (as requested by the party) any programs, information, property, data or documents of the other party in its possession or control;
2. termination of this Agreement will not affect any accrued rights or liabilities under this Agreement; and
3. termination will not affect any clauses which are intended to survive termination or expiry of this Agreement (including clauses 2.5, 3.6, 3.7, 3.8, 4.6, 5, 6.1, 6.9, 6.11, 6.12, 8, 9, 10.2, 11, 12, 14 and 15).

Access to your Data: During the 30 days after the termination or expiry of this Agreement, we will allow you limited ongoing access to the Platform solely to extract your Data. At the end of that period we will securely delete your Data, although we may continue to hold backups of your Data until the end of their scheduled retention period and/or for our permitted usage rights under this Agreement.

Notices

Giving notice: Any notice or other communication given by a Party for the purposes of this agreement (“Notice”) must be in writing and delivered in person (including by courier), by pre-paid post, or by email to that party’s address for notices as set out in the relevant Order Form (or as otherwise advised by that party in writing to the other party).

Delivery: A Notice by post is deemed received only at the time of actual delivery to the recipient’s address. A Notice by email is deemed received no later than 1 business day after the email is dispatched from the sender’s email server, unless within that time the sender’s email server receives an automated response advising that the message has not been delivered.

Dispute resolution

Negotiation: The parties will in good faith discuss any dispute that arises in connection with this Agreement with a view to resolving the dispute.

Arbitration: If the dispute has not been resolved within 20 business days (or such longer period agreed in writing by the parties) of either party giving written notice of a dispute, then either party may by written notice to the other party refer the dispute to arbitration as follows:

1. the arbitration will be conducted in Christchurch, New Zealand by a sole arbitrator in accordance with the Arbitration Act 1996;
2. the sole arbitrator is to be appointed by the parties or, failing agreement within five Working Days, by the then President of the Arbitrators & Mediators Institute of New Zealand (or his or her nominee) upon application by either party; and
3. the arbitrator’s decision will be final and binding on the parties (subject to manifest error).

Interlocutory relief: Nothing in this clause 14 precludes a party seeking or obtaining interlocutory relief against any other party or person where the party believes the relief is necessary for the urgent protection of the party’s rights or property.

Other matters

Force majeure: Neither party will be liable for any failure or delay in performance under the Agreement for causes beyond that party’s reasonable control, except to the extent that party could have avoided, mitigated or overcome the impact through the application of reasonable care and at a reasonable cost.

Entire Agreement: The Agreement is the entire understanding between you and us concerning your access to and use of the Platform, and supersedes all prior discussions, proposals, representations and understandings, written or oral, relating to that subject matter. We will not be bound by any other terms put forward by you, including any standard terms of trade references in your email correspondence or any purchase order.

Relationship between parties: Nothing in this agreement gives rise to any fiduciary obligations, or creates a legal relationship of partnership or joint venture, or gives any party any right to act on behalf of or bind the other party in any way except as expressly permitted by the Agreement.

Assignment: You may not assign, encumber or otherwise dispose of any rights under the Agreement without our prior consent, not to be unreasonably withheld.

Contract Privity: No provision of this agreement is enforceable by any person other than you and us.

Waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing, and then it will be effective only to the extent that it is expressly stated to be given. A waiver of a breach is not a waiver of any other breach.

Severability: Each term of this Agreement is separately valid and binding. If for any reason any party cannot rely on any term, all other terms will remain valid and binding.

Governing law: This Agreement is governed by New Zealand law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand in respect of any dispute arising out of or in connection with this Agreement. Each party agrees that the Courts of New Zealand are the most appropriate and convenient courts to settle disputes and each party waives any objections that it might have on the grounds of forum non conveniens (or any similar grounds) to New Zealand as the forum for proceedings arising out of or in connection with this Agreement.

Counterparts: The Order Form may be executed in any number of counterparts (including electronic copies of counterparts) which together will constitute a binding and enforceable agreement between the parties.

Defined Terms

In the Agreement, unless the context requires otherwise:

Agreement means an Order Form together with these Terms.

Confidential Information means the terms of this Agreement and all information and materials about the other party or its business, suppliers or customers acquired in connection with this Agreement.

Contract Year means each successive period of 12 months, commencing at the start of the Subscription Term, and each 12 month anniversary thereafter.

“Data” or “your Data” means data (including any personal information) that, a Device, you, or your authorised Users have uploaded to the Platform, together with any outputs generated by the Platform from that uploaded data.

“Data Breach” means any incident involving unauthorised Processing of your Data.

“Device” means an Overwatch hardware device (and/or any other device stated in the Order Form) loaned to you as part of your Subscription.

“Documentation” means the user documentation and technical documentation for the Platform, as updated by us from time to time and made available for viewing or download on the Platform.

“Information Security Breach” means a breach of clause 8 or clause 9.

“Law” means all applicable statutes, regulations and bylaws, and all mandatory codes, rules and orders, in each relevant jurisdiction.

“Minimum Term” means the minimum term of your Subscription, as determined in accordance with clause 2.2.

“Order Form” means a physical or electronic document that: (i) sets out the details of a subscription to one or more components of the Platform; (ii) includes or references these Terms; and (iii) has been accepted by you in accordance with clause 1.3 of these Terms.

“Platform” means the software applications we host and make available for customers to use over the internet, including any applications or other downloadable components that we provide as a means for customers to access those hosted software applications. The Platform also includes any Devices leased to you as part of your Subscription.

“Processing” includes storing, using, copying, modifying, transmitting, distributing and deleting, and “Process” has a corresponding meaning.

“Subscribed Products” means those parts of our Platform covered by your Subscription, as stated in the Order Form.

“Subscription” means the subscription purchased under the Order Form.

“Subscription Term” means the term of your Subscription, as determined in accordance with clause 2 and the relevant Order Form.

“Supplier”, referring to our Suppliers, means any service provider or supplier engaged, either directly by us or through a chain of service providers or suppliers ending with us, to provide services that are used to develop, host, support, maintain or manage the Platform.

“Third Party IP Claim” means a claim by a third party alleging that your use of the Platform or Documentation infringes intellectual property rights that the third party is entitled to enforce.

“User” means any person using an account that you have created in the Platform, or an account that we have created in the Platform at your request.

“User License” means an entitlement to a single active account in the Platform.

“Website” means our company website, which as at the date of these Terms is www.hamiltonjet.com.

Interpretation

Construction: In the construction of the Agreement, unless the context requires otherwise:

1. a reference to “we”, “us” or “our” is a reference to C W F Hamilton & Co Limited;
2. a reference to “you” or “your” is a reference to the customer named in the Order Form;
3. a reference to any monetary amount is to United States Dollars;
4. a reference to time is to New Zealand time;
5. a reference to business days is to business days in Christchurch, New Zealand;
6. a reference to any document, including the Agreement, includes a reference to that document as amended or replaced from time to time;
7. headings appear as a matter of convenience and do not affect interpretation;
8. a reference to “includes” is a reference to “includes without limitation”, and “include”, “included” and “including” have corresponding meanings;
9. no term of this Agreement will be construed against a party merely because it was drafted by that party; and
10. a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended or replaced from time to time.

Priority: To the extent there is any conflict between these Terms and the Order Form, these Terms will prevail, in each case except to the extent the Order Form specifically states that it modifies or overrides these Terms.