Terms and Conditions of Supply, Use and Maintenance of the FishSAFE Unit and Related Database
These are the Terms and Conditions
which govern the supply, use and maintenance of FishSAFE Units and
the initial provision of (and subsequent updating of) the Data and
Database associated with such Units. We are FLTC Services
Limited ("FLTCS") a not-for-profit organisation incorporated under
the Companies Acts in Scotland (Registered No. SC 348751) as a
limited company and having our registered office at 24 Rubislaw
Terrace, Aberdeen, Scotland, UK. References to "we" or "us"
in these Conditions shall be read as references to FLTCS.
References to "You" shall be read as meaning the Company,
individual, firm or other legal entity/person from time to time
owning or operating the vessel on which the FishSAFE Unit is
installed and/or used. You can contact FLTCS at the address
just mentioned. Your attention is also drawn to the
1 Meanings in these Terms and Conditions
"Conditions" means these standard Terms and Conditions (and any changes we may make to them) and all other terms or documents detailed or referenced herein;
"Contract" means the contract between You and FLTCS as of which the Conditions form part constituted pursuant to Condition 2 below (Contract Formation);
"Data" means information and details procured by FLTCS from third parties and related Databases relating to current operational and future sub-surface and/or seabed hazards in the UKCS;
"Database" means a catalogue of Data (in electronic form) capable of being loaded into a FishSAFE Unit and/or other types of onboard fishing vessel plotter systems;
"FishSAFE Operations Manual" means the FishSAFE Operations Manual current from time to time;
"FishSAFE Unit" means the FishSAFE Hazard Warning Device being an electronic unit consisting of hardware and software that is capable of displaying chart information and other Data and which is primarily intended to provide a fishing vessel skipper in the UKCS with a visible and audible warning of nearby oil and gas industry surface, sub-surface and/or seabed installations and infrastructure including obstructions or other hazards posed by such installations and/or infrastructure;
"Intellectual Property Rights" means all patents, copyrights, design rights, trade marks, database rights, trade secrets, knowhow, rights in confidential and/or proprietary information and any other intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
"Licence" means the Licence(s) detailed at Condition 7 below;
"Price" means the relevant amount(s) specified on the Purchase Order;
"Purchase Order" means the quotation, purchase or sales order, product information sheet or other document issued by FLTCS to You and containing or reproducing these Conditions;
"Services" means the supply of Services ancillary to the sale and supply of the FishSAFE Unit hereunder all as more particularly detailed at Condition 6;
"Warranty Period" means the period of 90 days from the delivery of the FishSAFE Unit.
2 Contract Formation
2.1 The placing of an order (whether orally or in writing) and whether or not based on any Purchase Order shall be deemed to be subject to these Conditions which shall apply to the exclusion of any other provisions contained in any other document issued by you and, in particular, contained in any order sent by You.
2.2 The Contract shall be effected as and when your order is accepted by FLTCS whether orally, in writing or by actings of FLTCS consistent with the existence of a contract of sale or supply.
2.3 No modification or amendment of these Conditions shall be binding upon FLTCS unless agreed in writing by someone duly authorised on behalf of FLTCS.
3 Financial Provisions and Payment
3.1 The price is exclusive of VAT and all other taxes and will be invoiced by FLTCS on delivery of each FishSAFE Unit. VAT is payable on the cost of each FishSAFE Unit before the application of any funding subsidies as noted at Condition 3.3.
3.2 Terms for payment of the price are as stated in the Purchase Order and subsequent FLTCS invoice for payment.
3.3 The price is subsidised by grant funding obtained by FLTCS from the European Fisheries Fund and the Scottish Ministers. In the event that your use of the FishSAFE Unit results in any clawback, repayment or other event under the grant conditions then we reserve the right to recover this from You.
3.4 It is a strict condition of the grant funding obtained by FLTCS from the European Fisheries Fund and the Scottish Ministers that You do not dispose of a FishSAFE Unit, for example, by selling the unit, selling a vessel with the unit, or otherwise removing the unit for a period of 5 years from the date of delivery of the FishSAFE Unit to You. If You wish to dispose of the FishSAFE Unit, You must:-
(i) seek prior writtenconsent fromthe Scottish Ministers via Marine Scotland, Fisheries Grants, Room 420, Pentland House, 47 Robb's Loan, Edinburgh, EH14 1TY;
(ii) provide the Scottish Ministers with any proceedsfrom the disposal of the FishSAFEUnitor the relevant proportion of the proceeds based on the percentage of grant funding used for subsidising the cost price of the FishSAFE Unit; and
(iii) provide the Scottish Ministers with the relevant proportion of any proceeds resulting from any provision included as a condition of sale of the FishSAFE Unit.
4 Delivery, Risk and Title
4.1 Any times quoted for delivery are to be treated as estimates only not involving any contractual obligation on the part of FLTCS.
4.2 Title to the FishSAFE Unit will not pass to You until (i) You install the FishSAFE Unit and (ii) we have received full payment of the Price but risk of loss or damage will pass on delivery. You are advised to insure accordingly. We will not accept any liability for loss of, or damage to, any FishSAFE Unit that occurs after delivery unless such loss or damage is caused directly by our negligence or wilful misconduct.
4.3 Installation of the FishSAFE Unit is your responsibility and must be carried out in accordance with the instructions in the FishSAFE Operations Manual. We will not accept any liability for incorrect or defective installation and/or any resulting malfunction or non-operation of the FishSAFE Unit except where such installation is carried out strictly in accordance with the FishSAFE Operations Manual.
5 Warranty and Disclaimer
5.1 FLTCS warrants that the FishSAFE Unit delivered pursuant to the contract conforms to the technical specifications agreed between FLTCS and the manufacturer of the FishSAFE Unit for the design, manufacture and supply of FishSAFE Units and that, at the time of delivery and, thereafter throughout the Warranty Period, each FishSAFE Unit will be free of defects in design, materials and workmanship under normal use and operation. This limited warranty is available to You only where You (i) have fully complied with these Conditions including the installation provisions set out at Condition 4.3 and (ii) are the original purchaser/licensed end user. No warranty is given to any other person or entity.
5.2 During the Warranty Period FLTCS will replace any FishSAFE Unit which proves defective in design, materials or workmanship, free of charge, on an exchange basis and otherwise on the conditions set out or referred to at Condition 6 (Maintenance, Repair and Other Services) below or will repair any defective FishSAFE Unit. This is our entire liability and your sole and exclusive remedy and any statutory or other warranty, condition, description or representation, express or implied, as to the state, quality or fitness of the FishSAFE Unit is, to the extent permitted by applicable law, hereby expressly excluded.
5.3 The repair or replacement of any FishSAFE Unit that You may request after the Warranty Period has expired shall be carried out only in accordance with the repair service arranged by FLTCS through the service provider, Jeppesen Italia S.r.l. to the provisions of Condition 6 (Maintenance, Repair and Other Services) below.
6 Maintenance, Repair and Other Services
6.1 To participate in and/or obtain, as the case may be (i) the free repair service which applies for a period of 3 years from the date of delivery of the FishSAFE Unit to You for rectifying faults and errors that may arise through ordinary use of the FishSAFE Unit and (ii) the spare parts and maintenance service You should refer to, and follow, the procedure set out in the dedicated FishSAFE Unit maintenance section of the FishSAFE website accessible from www.fishsafe.eu. This website is an up to date reference tool for any problems that may arise in connection with the Unit. In the event that You are unable to access this site, please contact the address specified in the FishSAFE Operations Manual. You acknowledge and agree that there is no obligation on FLTCS whatsoever to procure the services noted at this Condition beyond 31 December 2012.
6.2 It is a material term of these Conditions that the Database provided with your FishSAFE Unit is to be updated by You regularly and promptly following the issue of any Data update.
You are advised to consult www.fishsafe.eu regularly for the purposes of informing yourself as to the existence and availability of these updates.
7 Intellectual Property, Ownership and Licence Grant
7.1 Your rights with respect to Intellectual Property Rights in the FishSAFE Unit are those of a licensee. The Licence granted to You and through your use of the FishSAFE Unit is a non-exclusive, non-transferable (except in the circumstances identified in Condition 10.1 below) revocable permission to use the software embedded in the FishSAFE Unit and the Data solely for the normal operation of the FishSAFE Unit as an on-board fishing vessel hazard warning device and strictly not as the sole or primary method of navigation of such vessel. In the operation of the FishSAFE Unit You are also required to use Government charts and prudent navigation practices. The validity and duration of your Licence is dependent upon your compliance in full with these Conditions.
7.3 Except as (i) permitted hereunder or by mandatory applicable law or (ii) for the initial loading and other operations necessary for the lawful utilisation of the FishSAFE Unit and the Data, this Contract and the Licence(s) granted do not allow You, or provide You with any rights:
to copy, reproduce, publish, translate, modify, adapt or reverse engineer the FishSAFE Unit or the Data;
to sell, transfer or lease the Data or the FishSAFE Unit or to bundle, repackage or include or store the Data or Database (or any extracts therefrom) with any other software or in any other retrieval system;
- to use any of the trade marks of FLTCS or any associated company, including, but not limited to, the trade name "FishSAFE".
8 Exclusions and Limitations of Liability
8.1 The Data (which is provided free of charge) is derived or provided in part from material and information supplied in good faith by third party providers (collectively "Data Originators") with whom FLTCS has certain procurement arrangements. However, neither we nor such Data Originators have verified the Data nor do we or they warrant that it is accurate or complete or free from errors, omissions or modifications. We do not accept any liability for defects due to incorrect or missing information from such Data Originators.
8.2 Neither we nor our respective agents, suppliers and sub-contractors, accept any liability for loss whether direct, indirect consequential or economic or damage including, without limitation, loss of business or profits resulting from, any defect in, or your operation of, the FishSAFE Unit and/or errors or omissions in, or your use of, the Data (or such operation and/or use by any third party) except in respect of death or personal injury caused by our negligence (which, if proved, is not excluded) or to the extent required by applicable law.
8.3 In the event that, notwithstanding the foregoing exclusion of liability,we are found liable to You then our entire liability, in such event, shall not exceed in total £10,000 (ten thousand pounds sterling).
9 Termination Provisions
9.1 Without prejudice to any other rights governed by the Contract, your Licence and any right to receive Services granted hereunder will automatically terminate if You fail to comply with any of the Conditions and such failure, if capable of remedy, is not remedied within the time specified by us in a written notice served on You for that purpose.
9.2 In addition to the loss of your Licence and related rights in terms of the preceding Condition 9.1 upon termination of the Contract howsoever caused You are required to return all of the Data in whatever format and/or medium it has been supplied to FLTCS or alternatively, to destroy same and including erasing and deleting all, if any, copies of same held by You.
10 Miscellaneous and General
10.1 You are not entitled to assign or otherwise transfer your rights and obligations under this Contract save that the Licence may be transferred by You to any subsequent owner of the Vessel on which the FishSAFE Unit is installed and operated subject to Condition 3.4 and provided that such new or subsequent owner undertakes to be bound by, and to comply with, the whole terms and conditions of the Contract.
10.2 If any provision of this Contract shall to any extent be deemed to be void and unenforceable by any court or competent authority of competent jurisdiction, such provision shall be deemed to be deleted from this Contract and the remaining provisions of the Contract shall continue in full force and effect.
10.2 This Contract and the documents referred to in it represent the entire agreement between You and FLTCS in connection with its subject matter and supersedes any prior agreement or arrangement between such parties whether written or oral.
10.3 All matters arising under this Contract shall be determined according to the law of Scotland and the parties submit to the non-exclusive jurisdiction of the Scottish Courts.
© FLTC Services Limited
VERSION: December 2009