Terms and Conditions for Idwal Data

Idwal Data Terms & Conditions

These Idwal Data Terms & Conditions ("Data Terms & Conditions") set out the basis on which Idwal Marine Services Limited, trading as Idwal (“Idwal”), provides Data to the customer (“Customer”) as set out in the Order Confirmation Form (“OCF”). These Data Terms & Conditions and the OCF together form the contract (“Contract”) between Idwal and the Customer.

Definitions

“Affiliate(s)” means, in relation to a company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.

“API” means an Application Programming Interface.

“Authorized User” means an entity authorized by the Customer to access a Customer System containing the Data.

“Confidential Information” means all confidential information disclosed by a Party or its Representatives to the other Party and that Party's Representatives in connection with the Contract, which is either (a) labelled as such or (b) which should reasonably be considered as confidential because of its nature and the manner of its disclosure. For the purposes of the Contract, Idwal’s Confidential Information includes the Data.

“Connection Limits” means any limits specified in the OCF in relation to the number of times an API can be accessed, the number of simultaneous connections Customer may maintain with an API, or other similar restrictions.

“Customer Systems” means the Customer’s and/or Authorized Users’ applications, platforms, systems and reports.

“Data” means (a) the data, products, APIs and/or services provided by Idwal to Customer as specified in the OCF; (b) any Manipulated Data; and (c) any information made available to the Customer through the through communication with Idwal, including but not limited to, reports, data points, data sets, articles and marketing material.

“Derived Data” means the Data manipulated to such a degree that it (a) cannot be reverse-engineered such that the Data is able substantially to be extracted; (b) is not capable of use substantially as a substitute for the Data; and (c) is used only for the internal business purposes of the party that creates the same and not used as part of any commercial offerings.

“Distribute” means to make the Data accessible to any third-party by any means including by re-selling, sub-licensing or transferring the Data or the provision of access through an API or database populated with the Data (but excluding making the Data accessible through Derived Data or Customer Systems, where permitted in the OCF).

“Effective Date” means the start date for the provision of the Data specified in the OCF.

“Fees” means the charges to be paid by the Customer to the Idwal as set out in the OCF, or agreed in writing between the Customer and Idwal.

“Initial Term” means the initial term of the Contract as specified in the OCF.

“Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets, design rights, database rights, domain name rights, moral rights, rights in the Data arising under the law of confidentiality, and any other intellectual property rights throughout the world.

“Interest Rate” means the rate of 4% a year above the Bank of England‘s base rate, but at the rate of 4% a year for any period when that base rate is below 0%.

“Internal Use” means the use of the Data by or on behalf of Customer only for Customer’s internal business purposes and not directly for any revenue generating purposes.

“Internal User” means employees and contractors of Customer who are required to access the Data solely for the purposes permitted under the Contract.

“Manipulated Data” means any of the data provided by Idwal to Customer as specified in the Order Form that has been combined or aggregated (wholly or in part) with other data or information or otherwise adapted, reformatted, or manipulated but not to the extent it becomes a Derived Data.

“Party” means Idwal or Customer individually and “Parties” means them collectively.

“Permitted External Use” means the use of the Data (a) to produce Derived Data; or (b) in Customer Systems, in each case for provision to third parties.

“Permitted Purpose” means to display, reformat or distribute the Data internally within the Customer’s business only in insubstantial portions for the Customer’s internal business purposes or for research and related work in the ordinary course of the Customer's business. Permitted Purpose shall also include any “Permitted Purpose” as set out in the relevant OCF.

“Representatives” means in relation to a Party: (a) its Affiliates; and (b) its and its Affiliates’ officers, directors, agents, partners, and employees. Idwal’s Representatives shall also include any Third Party Data Providers.

“Renewal Term” means a period of 12 months, unless agreed otherwise in writing between the parties.

“Restricted Person” means any person who from time to time (i) is named on a Sanctions List; (ii) is controlled by, or acts on behalf of, a person named on a Sanctions List; (iii) is located, operating, ordinarily resident or incorporated in a Sanctioned Country; or (iv) is otherwise the target or subject of Sanctions.

‍“Sanctioned Country” means a country, territory or region which is, or whose government is, the subject of Sanctions; Sanctions means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by any Sanctions Authority.

‍“Sanctions Authority” means any competent sanctions authority, including the United Kingdom, European Union, any European Union member state, United Nations and its Security Council, and the US government, together with any government entity of any such sanctions authorities, such as the US Department of State, the Office of Foreign Assets Control and His Majesty’s Treasury;

“Sanctions List” means a list of specifically designated nationals or designated persons held or administered by a Sanctions Authority;

“Term” means the Initial Term and any Renewal Term.

“Third-Party Data Provider” means a third-party whose data, information, software, or other material is supplied as part of the Data.

“Third-Party Data Integrator” means a third-party service provider that Idwal integrates its services with, to provide Data to the Customer.

Data and Data Use

2.1 Idwal shall provide access to the Data to the Customer during the Term.

2.2 Idwal grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to:

(a) access the Data; and

(b) use the Data:

(i) for Internal Use;

(ii) to create Derivative Works for Internal Use; and

(iii) for any Permitted External Use allowed in the OCF.

2.3 The license granted by Idwal in Clause 2 shall be:

(a) for up to the number of Internal Users and (where applicable) Authorized Users permitted in the OCF;

(b) for the duration of the Term; and

2.4 If Customer wishes to Distribute the Data to its end customers, it must enter into an additional agreement with Idwal to cover such Distribution (“Distribution License”).

2.5 Customer shall not:

(a) exceed the maximum number of Internal Users or Authorized Users permitted in the OCF;

(b) exceed any Connection Limits;

(d) allow any of its Affiliates to use the Data;

(e) Distribute the Data save as expressly allowed by a Distribution License;

(f) use the Data or Derived Data in connection with building a competitive service to the Data;

(g) remove or alter any notice of Idwal’s Intellectual Property Rights included as part of the Data;

(h) disassemble, reverse engineer, or otherwise decompile the Data; or

(i) directly or indirectly impair or dispute the ownership of any part of the Data; or

(j) disclose the availability, performance or functionality of the Data, or for any other benchmarking or competitive purposes.

2.6 If the Customer a) exceeds any limits on the number of Internal Users or Authorized Users; or b) any unauthorized use is made of the Data and such unauthorized use is attributable to the Customer, Customer shall immediately pay Idwal an amount equal to the Fees that Idwal would have charged for such use.

2.7 Customer shall not, and shall procure that the Authorized Users shall not, unless explicitly agreed within the OCF, use the Data in whole or in part (including in anonymized form) in connection with any machine learning or artificial intelligence technology purposes, including, but not limited to

(a) to train, influence or optimize, or as a source for, any artificial intelligence or machine learning tools,

(b) to develop a substitute for the Data,

(e) or for research purposes.

Terms and Termination

3.1 The access to the Data shall commence on the Effective Date and continue for the Initial Term.

3.2 Without limiting its other rights or remedies, either Party may terminate the Contract with immediate effect, without liability to the other party, by giving written notice to the other party in the following circumstances:

(a) by Idwal for non-payment by Customer of any Fees provided that Customer shall have 14 days from the date of receipt of the notice of non-payment to cure a non-payment;

(b) by Idwal immediately if Customer breaches Condition 2 (Data and Data Use) or 9 (Data Protection and Security) of the Contract;

(c) by Idwal immediately if Customer is in breach of any clause relating to the security or use of any data provided by Idwal pursuant to any other agreement between the Parties; by either Party upon a material breach of the Contract by the other Party and failure of such other Party to cure that material breach within 30 days of delivery of a notice of such material breach by the Party seeking to terminate; or

(d) by either Party immediately if the other Party becomes the subject of a voluntary petition in bankruptcy, an involuntary petition in bankruptcy that is not dismissed within 90 days, or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

3.3 In the event that Idwal deems that Customer or any of its Affiliates is a competitor, then Idwal may, upon written notice to the Customer, immediately terminate the Contract. Idwal shall provide a refund of a pro rata portion of the Fees if the Contract is terminated in accordance with this clause. Such pro rata refund is Idwal’s sole liability as a result of termination in accordance with this clause.

3.4 In the event that Customer is in material breach of the Contract or any other agreement with Idwal, Idwal shall have the right to suspend immediately access to the Data until Customer cures such breach.

Consequences of Termination

4.1 Immediately upon termination of the Contract, Customer shall, except as permitted in the OCF, cease using the Data.

4.2 Within thirty (30) days of termination of the Contract, Customer shall, and shall procure that any third party with whom it shared the Data, destroy the Data in its possession. It is acknowledged that the Data may persist on archival or backup systems for a period of time in accordance with Customer’s standard data retention policies but that the Data will not be used following termination.

4.3 Within two (2) months of termination of the Contract, Idwal may, on providing ten (10) days’ notice to the Customer and during regular business hours, reasonably inspect, or have its Representatives inspect, the Customer’s information systems and audit the Customer’s information systems as necessary to verify compliance with condition 4.2 above.

4.4 Upon termination of the Contract by Idwal, Customer shall pay:

(a) all Fees then due; and

(b) the remainder of the Fees that would have been paid for the remainder of the Initial Term or the then-current Renewal Term (as applicable) had Idwal not terminated the Contract.

4.5 In no event will any termination relieve the Customer of its obligation to pay any Fees payable to Idwal for any periods prior to the effective date of termination.

4.6 All payments pursuant to this Condition shall be made within 30 days of the effective date of termination.

Payments and Fees

5.1 Customer shall pay each invoice submitted by Idwal for the Fees as per the payment terms agreed in the OCF in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Except as expressly provided herein the Fees are non-refundable.

5.2 Any amounts due by Customer to Idwal that are not paid by the applicable due date shall accrue interest at the Interest Rate.

5.3 Idwal may, on each anniversary of the Start Date, increase the Fees by up to 5% from the level of Fees applicable in the immediately preceding 12 months.

5.4 In addition to any increase in the Fees under Condition 5.3, If Idwal wishes to revise the Fees at the end of the Initial Term or a Renewal Term, Idwal shall give Customer at least 30 days’ written notice prior to the end of the Initial Term or Renewal Term (as applicable) specifying the revised Fees for the subsequent Renewal Term.

5.5 The Fees exclude all Taxes, which Customer shall pay in addition to the Fees.

Warranties and Disclaimers

6.1 Idwal warrants that it has, and will continue to, maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the Contract.

6.2 Except as expressly stated in the Contract:

(a) the Data is provided on an “as is” and “as available basis”; and

(b) all warranties, conditions, and terms, whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.

6.3 Idwal does not warrant:

(a) the merchantability and fitness for a particular purpose of the Data; or

(b) the accuracy, reliability, quality, or completeness of the Data; or

(d) the Data be free from vulnerabilities or viruses.

6.4 Any indicators, grades or ratings in the Data should only be seen as an estimated indicator of likelihood. Customer:

(a) acknowledges and agrees that there are uncertainties inherent in attempting estimation of likelihood; and

(b) takes full responsibility for making its own evaluation of the adequacy and accuracy of Idwal’s estimation of likelihood.

6.5 Customer shall rely on the Data at its sole risk.

6.6 Customer represents and warrants to Idwal that neither the Customer, its Affiliates nor any of the Authorized Users will use the Data in a manner which violates any applicable laws, statutes, codes or regulations.

6.7 Idwal may monitor the Customer's use of the Data to ensure compliance with this Contract.

6.8 Idwal shall ensure a monthly uptime of 99.5% for the APIs, products and services used to deliver the Data to the Customer.

6.9 Idwal may, from time to time, apply upgrades, patches, bug fixes, or other maintenance to the Data (“Data Maintenance”). Idwal shall use reasonable efforts to provide the Customer with prior notice of any scheduled Data Maintenance (except for emergency Data Maintenance), and the Customer shall use reasonable efforts to comply with any Data Maintenance requirements requested of the Customer by Idwal.

6.10 Idwal may, from time to time make a prior version of the Data (“Prior Data Version”) obsolete on at least ninety (90) days’ prior notice following the general availability of a new version thereto (“New Data Version”). Idwal shall have no obligation or liability whatsoever (specifically including any support or maintenance obligations) to the Customer with respect to the Prior Data Version upon expiration of such notice period, and the Customer’s right to access and use the Prior Data Version will automatically terminate sixty (60) days after expiration of such notice period.

6.11 Customer shall, at its cost and expense, be solely responsible for making any necessary additions, changes and/or modifications to the Customer Systems due to Data Maintenance and/or a New API Version.

Intellectual Property

7.1 Customer acknowledges and agrees that Idwal and/or its licensors own all intellectual property rights in the Data (including Manipulated Data), except for Derived Data. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Data.

7.2 Idwal confirms that it has all the rights in relation to the Data that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

Limitation of Liability

8.1 Nothing in the contract shall limit or exclude the Idwal’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

8.2 Subject to Condition 8.1 above:

(a) Idwal shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any consequential, indirect or special losses including, without limitation: (i) financial or economical loss; (ii) loss of profit, (iii) loss of business or business opportunity; (iv) corruption, loss of or loss of use of data; (v) loss of revenue; (vi) loss of anticipated savings; or (vii) loss of contracts, howsoever arising out of or in connection with the Contract, save where otherwise provided by statute, including any losses that may result from the Idwal’s deliberate personal repudiatory breach of the Contract; and

(b) shall have no liability to the Customer for any losses the Customer suffers resulting directly or indirectly from: (i) failures of performance on the part of a Third-Party Integrator or any internet service provider; (ii) failure of Customer’s equipment or those of Authorized Users; or (iii) Idwal’s provision of scheduled system upgrades or maintenance; and

(c) Idwal’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by the Idwal’s deliberate personal repudiatory breach shall not exceed the Fees paid by the Customer in the preceding 12-month period. In the case that there are no Fees payable by the Customer, then Idwal’s total aggregate liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed $100.

8.3 Except for claims relating to the Customer’s misuse of the Data, no action, claim or lawsuit relating to the Contract may be filed later than one (1) year from the date of expiry or termination of the Contract.

Data Protection and Security

9.1 Each Party agrees that EU General Data Protection Regulation (“GDPR”) shall be the governing standard for data protection and the practices and conduct of each Party as “data controller” or “data processor,” respectively. Each Party agrees to execute such additional documents, instruments, certificates or deeds as may be necessary to comply with its obligations under the GDPR.

9.2 Subject to the limitation of liability provisions in the Contract, to the extent that Customer has an entitlement GDPR to claim from Idwal compensation paid by the Customer to a data subject as a result of a breach of GDPR by Idwal, Idwal shall be liable only for such amount as it directly relates to its responsibility for any damage caused to the relevant data subject.

9.3 Idwal may issue to Customer one or more passwords or application keys for access to the Data (“Credentials”), which Customer acknowledges is only for Customer’s use and may not be shared with anyone else.

9.4 Customer shall at all times maintain security systems and procedures no less stringent than those it applies to its own similar confidential or sensitive data and/or systems to prevent any unauthorized access to, misuse of, or disruption to the Data or Credentials.

9.5 Customer shall promptly give written notice to Idwal of any unauthorized access to, misuse of, or disruption to the Data or Credentials of which it is aware, including reasonable detail of the security breach and the measures taken to cure it.

Confidentiality

10.1 Each Party shall keep the other party’s Confidential Information secret and confidential, and shall not:

(a) use or disclose such Confidential Information except for the purpose of performance of its obligations under the Contract; and

(b) disclose such Confidential Information in whole or in part to any third party, except to its employees, subcontractors and advisors who (i) need to know such Confidential Information for the Permitted Purpose; and (ii) are strictly bound by confidentiality obligations at least as strict as the ones contained in the Contract.

10.2 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.

10.3 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in the Contract are granted to the other party, or shall be implied from the Contract.

Marketing and Feedback

11.1 Customer hereby grants to Idwal a non-exclusive license to use its name and logo on Idwal’s website, promotional materials and marketing materials, solely in connection with the provision of the Data to the Customer.

11.2 Any and all data, information, materials, feedback and insights Customer and/or Authorized Users may share with Idwal with regards the Data or otherwise, either in tangible, electronic, oral, visual or any other form, such as comments, product comparisons, performance testing results, defects or bug reports, functional or feature requests, benchmarks, ideas, suggestions, critiques and recommendations, etc. (“Customer Feedback”) is entirely voluntary. The customer agrees that:

(a) Idwal may freely use any Client Feedback in perpetuity and without any obligations to Customer, and may further disclose, reproduce, license, distribute and otherwise commercialize and exploit all Customer Feedback, in any Idwal products and/or services in perpetuity and without any obligations to Customer; and

(b) Idwal shall be the sole owner of any improvement, modification, invention and/or development relating to its products and/or services (whether patentable or not) made on the basis of or in connection with Customer Feedback.

Indemnity

12.1 Customer indemnify Idwal against all losses, damage, claims, demands, actions, costs, charges, expenses, and liabilities of whatsoever nature (including without limitation court costs and reasonable legal fees) arising from any claim:

(a) against Idwal or Idwal’s Representatives by Customer’s Affiliates, Internal Users, customers, or Representatives arising out of or in connection with the Contract; or

(b) by a third-party arising out of or in connection with:

(i) any material breach of the Contract by Customer;

(ii) any fraud, gross negligence, or willful misconduct by Customer; or

(iii) any unauthorized or unlawful use of the Data by Customer or its Representatives.

12.2 Idwal shall indemnify the Customer against all losses, damage, claims, demands, actions, costs, charges, expenses, and liabilities of whatsoever nature (including legal fees) arising from any claim by a third-party against the Customer alleging that the Data infringes any Intellectual Property Right of that third-party.

12.3 In order for any claim to be indemnified under the Contract, the Party seeking indemnification shall provide to the indemnifying Party:

(a) written notice to the indemnifying Party as soon as reasonably practical;

(b) the exclusive defense and control of such claim and its settlement; and

Governing Law

13.1 The Contract shall be governed by and construed in accordance with the laws of England and Wales excluding its conflict of law provisions. Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, which cannot be solved amicably amongst the Parties, shall be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (LCIA) pursuant to the Arbitration Rules of the LCIA for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be London. The Tribunal shall consist of one arbitrator and the language of the arbitration shall be English.

Miscellaneous

14.1 No partnership. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

14.2 Notices. Any notice given pursuant to the Contract may be sent by hand or by post or by registered post or by the recorded delivery service or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on the Order, or to such other address as the party may by notice to the other have substituted therefor, shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.

14.3 Assignment. The Customer shall not, without the prior written consent of Idwal, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.4 Priority. To the extent of any conflict or inconsistency between these Data Terms & Conditions and the OCF, the terms of the OCF shall prevail.

14.5 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Contract, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Contract shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14.6 Surviving Terms. The provisions set forth in Sections 6, 7, 8, 9, 10 and 12, and any other right or obligation of the Parties in the Contract that, by its nature, should survive termination or expiration of the Contract, will survive any expiration or termination of the Contract.

14.7 Headings and Variation. The headings to these Data Terms and Conditions shall not affect their construction or interpretation. No variation of these Data Terms and Conditions or the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14.8 Non-Disparagement. Neither Party shall, for the duration of the Term of the Contract and thereafter, directly or indirectly make any false defamatory statements about the other Party, or any of the other Party’s Affiliates, customers, contractors, or representatives.

14.9 Third Party Rights. Nothing in the Contract shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999. No variation to the Contract and no supplemental or ancillary agreement to the Contract shall create any such rights unless expressly so stated in any such agreement by the parties. This does not affect any right or remedy of a third party which exists or is available otherwise than pursuant to that Act.

14.10 Force Majeure. Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from circumstances beyond its reasonable control (including the failure beyond Idwal’s reasonable control of a Third-Party Data Provider to supply Idwal with any data provided as part of the Data). In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 90 days, the Party not affected may terminate the Contract by giving 30 days' written notice to the affected Party.

14.11 Legal Fees. If any actions, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to the Contract, the prevailing Party shall be entitled to recover its legal fees and court costs from the non-prevailing Party on a full indemnity or actual solicitor-client costs basis.

14.12 Sanctions. Customer represents and warrants to Idwal that:

(a) neither Customer, nor any of its Affiliates, nor any of its Authorized Users: (i) be a Restricted Person; (ii) be controlled by, or control, a Restricted Person; or (iii) act on behalf of, or for the benefit of, a Restricted Person;

(b) neither Customer, nor any of its Affiliates, nor any of the Authorized Users, shall: (i) be located within a Sanctioned Country; or (ii) use the Data in a manner or for a purpose prohibited by Sanctions or in respect of business in a Sanctioned Country; and

(c) Customer and each of its Affiliates shall comply with all Sanctions and shall refrain from acting in any way that could cause Idwal to violate any Sanctions.

14.13 Anti-Slavery. Both parties shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015 in any part of their supply chain. This includes, but is not limited to, not supporting or engaging or requiring any forced labor, the use of child labor, bonded labor, indentured labor and prison labor.

14.14 Anti-Bribery. The Customer shall not offer or give, or agree to give, to any member, employee or Representative of Idwal or any other third party any gift or consideration of any kind as an inducement or reward for doing or refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this Contract or any other contract with Idwal or for showing or refraining from showing favor or disfavor to any person in relation to this or any such contract. The attention of the Customer is drawn to the criminal offences created by the Bribery Act 2010.