Distribution Agreement for the ENC Service by and between Norwegian Hydrographic Service and. Agreement No.:.. Version No.: 1.0

Transcription

1 Distribution Agreement for the ENC Service by and between Norwegian Hydrographic Service and. Agreement No.:.. Version No.: 1.0

2 Contents: 1 Parties and relevant documents Definitions Grant 4 Sales target Payments, accounts and auditing Intellectual property Internet and other interactive media Information, service and other obligations on the parties Contracting Advertising and marketing Force Majeure Assignment Dispute resolution Interpretation and Amendment Period Warranty and indemnity Severability Termination Confidentiality Last Amended 5-Dec-12 2 Initials:

3 1 Parties and relevant documents The parties to this Agreement are: 1. The Norwegian Hydrographic Service as operator of NHS RENC, hereinafter called the NHS, and. .. Website: VAT no.:, hereinafter called the Distributor. This agreement takes effect when signed by both parties, and is done in two equal counterparts, retained by each of the parties. The NHS has given this Agreement the following number.. 2 Definitions To avoid repetition, the following expressions, wherever used within this Agreement, have the specific meanings given below. ENC An Electronic Navigational Chart with updates, standardised as to content, structure and format, issued for use with ECDIS on the authority of government authorised hydrographic office. The ENC contains all the chart information necessary for safe navigation and may contain supplementary information in addition to that contained on the paper chart which may be considered necessary for safe navigation. ENC Updates Any new version (ENC revisions) of all or any part of the ENC Service or any modification, correction or addition to the ENC Service as may be issued by the NHS from time to time. The ENC Service ENC's delivered by the NHS to the Distributor, either in the PRIMAR/IHO security scheme or in an unencrypted format for SENC-distribution. This includes ENC's which the NHS distributes on behalf of other organisations and hydrographic authorities. SENC A System Electronic Navigational Chart (SENC) is an ENC that is adapted by a type-approved SENC converter to be used in the End-users system. SENC-distribution Distribution of ENC from the Distributor in a secured SENC format compiled from using S57 type approved SENC converter. Security Copy A single copy taken solely for the purpose of protecting against accidental loss or corruption of digitally stored information. Sale Sale, hiring out or otherwise distributing whether for a charge, on a non-profit basis, or free. Cognates of Sale shall be construed accordingly. Sub-Distributors Third parties that the Distributor appoints to distribute the ENC Service to End-users. Last Amended 5-Dec-12 3 Initials:

4 End-user The individual(s) at the installation (e.g. vessel) who is registered by the Distributor or his Sub- Distributors and who uses the ENC Service on a day to day basis. Reproduction Copying of any type in any manner, in whole or in part, whether direct or indirect, permanent or intermediate, in analogue or digital form. Communication to the Public Distribution of products in physical or digital form by any means or process, including wireless communication and broadcasting and all instances of making the ENC Service accessible to the public, whether actually accessed or not. This includes placement on Internet and any other interactive media. Usage Right The right to use for personal purposes (if acquired by a natural person) or internal purposes (if required by a legal person). It includes making reproductions, as well as adding and deriving information. Usage Right does not include the right to make Communication to the Public. Distribution Right The right to distribute the ENC Service. It includes the right to appoint own Sub-Distributors. Distributors have no Usage Rights except as necessary to demonstrate the ENC Service to potential End-users. If any display equipment used by the end users or distributors is capable of producing analogue copies of an ENC, or any part thereof, such copies shall only be used for their own internal use. Distributor shall undertake to inform the End users or Sub-distributors of this limitation. 3 Grant 3.1 General The NHS grants the Distributor a non-exclusive licence to distribute the ENC Service in accordance with the terms of this Agreement. This can be distribution of the ENC Service in the PRIMAR/IHO security scheme, alternative security scheme with necessary documentation to verify secure operation and full compliance with IHO Security Scheme or in an unencrypted format for SENCdistribution where the national HO has consented to SENC-distribution. The Distributor shall deliver a weekly update of the ENC Service to the End-users. The Distributor s employees shall not be entitled to Usage Rights for personal purposes. The Distributor shall not make available any copies of the ENC Service or any part of them, to any third party unless permission to do so is granted in this Agreement. The Distributor undertakes to inform its employees of this limitation. 3.2 The encrypted ENC Service The Distributor may repackage the ENC Service so long as: The fundamental structure of the ENC Service is not in any way compromised. The information contained in the ENC Service (e.g. the ENC cell and update data) is not corrupted or altered in any way. In this context, repackage shall be taken only to mean: Last Amended 5-Dec-12 4 Initials:

5 Supply by the Distributor of the information contained in the ENC Service by alternative digital media or by a form of electronic file transfer. Bundle the ENC Service together with other data or services provided by suppliers other than the NHS, provided that it is clear to the End-user if the other data or services are not ENCs. Branding and labelling of service in accordance with NHS RENC Profile Guidelines If the Distributor wishes to repackage the ENC Service in a way that is not defined above, the Distributor must seek the NHS s prior written approval. 3.3 SENC-distribution For ENCs which are approved for SENC-distribution and delivered to the Distributor in a unencrypted format, the Distributor is granted the right to convert the ENCs into SENC by the use of a SENC converter that is type approved. Distributor might repackage the services as long as it is clearly indicated that the ENCs are delivered from NHS RENC. This in accordance with NHS RENC Profile Guidelines or as approved in writing by NHS, in due course before distributors ENCs/SENC is sold and distributed to the market Distributor might bundle the ENC Service together with other data or services provided by suppliers other than the NHS, provided that it is clear to the End-user if the other data or services are not ENCs. 4 Sales target The Distributor shall agree with the NHS on an annual sales target for the Distributor. This target will be based on consideration of a sales forecast submitted by the Distributor. The NHS reserves the right to terminate this Agreement, if the Distributor fails substantially to achieve the set annual sales target by the end of the respective annual period. 5 Payments, accounts and auditing 5.1 The encrypted ENC Service The Distributor agrees to make payments for each delivery in the manner set out in Schedule 2. Any failure to make these payments within the given time period shall be a material breach of this Agreement. Subscription will be automatically renewed every 12-months until cancellation received by Distributor. Cancellation must be received within 14 days before expire of subscription period. If no cancellation is received, an invoice for next subscription period will be sent automatically to Distributor. See also Schedule 2 for more information. 5.2 SENC-distribution The Distributor agrees to make payments in the manner set out in Schedule 2. Any failure to make these payments within the given time period shall be a material breach of this Agreement. During the term of this Agreement and for a further 7 seven years period thereafter, the Distributor shall keep full true and accurate books of account containing all particulars which may be necessary for the purpose of showing the amount payable to the NHS. A price list for end user and/or sub distributor shall be delivered to NHS once a year. SENC Distributor shall report back to NHS as described in Schedule 3. Last Amended 5-Dec-12 5 Initials:

6 All payments shall be made within 30 days of the date of the relevant invoice. All payments are to be sent to Statens kartverk, Kartverksveien 21, 3511 Hønefoss, Norway. Payments are to be paid to bank account number Nordea Bank Norge ASA, P.O.Box 1166, N Oslo. Swift code: XIAN NO KK. The NHS reserves the right to change the payments given in Schedule 2 and will undertake to give 90 ninety days written notice of those changes. Failure by the Distributor to deliver such reports by the due date shall entitle the NHS to impose a penalty fee of NOK 1.000,- per day for each day after the due date that any report is not delivered to the NHS. The NHS shall be entitled to impose such penalty fees for a maximum of 10 days, after which the failure to deliver the report shall be a material breach of this Agreement entitling the NHS to terminate it forthwith or to impose further penalty fees on whatever basis the NHS may consider appropriate. The NHS undertakes to retain the confidentiality of this information and to ensure that when information is passed to other members of the IHO, it is done so under the terms of Clause 19. The NHS reserves the right, at our its expense, to access the Distributor s and its Sub-distributors books and accounts at all reasonable times to verify the above audited figures. This includes the right to access the Distributor s and its Sub-Distributors premises to monitor the performance of this Agreement. If an audit concludes that the Distributor has failed to account for the payment due under this Agreement, the Distributor shall pay the costs of the audit. Failure to comply with this paragraph will be considered a material breach of contract. 6 Intellectual property The Distributor acknowledges that the ENC Service is protected by Intellectual Property Law and agrees to abide by the provisions of the said Law. The Distributor undertakes that all the ENC Service, associated literature and publicity material distributed by the Distributor or its Sub-Distributors shall carry an acknowledgement and/or warning indicating the sources of the data and stating that it is protected by copyright and that it may not be reproduced without the prior written consent of the copyright holders. Any failure to do so will constitute a material breach of this Agreement. 7 Internet and other interactive media Use of the ENC Service on an interactive open network such as Internet, requires prior written approval from the NHS. The Distributor can display the ENCs in raster format on Distributor's own Internet-pages for the purpose of marketing, by a maximum of 1 (one) display of 12 x 12 cm of each ENC. The maximum resolution should be 72 dpi. Use of the ENC Service on an interactive network with limited access, such as Intranett or Extranett, is only permitted if the network is used solely by the Distributor and its employees. 8 Information, service and other obligations on the parties 8.1 NHS The NHS shall provide for the Distributor: A complementary usage of the ENC Service for demonstration purposes only, this usage shall be agreed to on a case by case basis; Samples of promotional guidelines for the ENC Service, produced by the NHS from time to time; Last Amended 5-Dec-12 6 Initials:

7 A help facility available at least during 0900 to 1430 CET on Norwegian working days; and Information on misuse by Sub-Distributors or End-users that the NHS becomes aware of. 8.2 The Distributor The Distributor shall at all times during the term of this Agreement: Supply copies of each item of any Literature and packaging produced by the Distributor to the NHS upon publication; Notify the NHS as soon as it becomes aware of any unauthorised use, or suspected unauthorised use, of the ENC Service and provide the NHS with assistance in relation to this where appropriate. The NHS may at its discretion request the Distributor to terminate the End-users right to use or access the ENC Service; Meet with the NHS at the NHS s request, to discuss details of any matters arising concerning this Agreement or the ENC Service. The costs involved with such meetings will be agreed upon in advance; and Ensure that the Distributor s own staff, the Sub-distributors and all End-Users are: (a) adequately trained in the use and application of the ENC Service; (b) familiar and up to date with the systems available on which the ENC Service can be used; (c) informed promptly about changes and enhancements and Updates to the ENC Service; 9 Contracting The Distributor may contract out work described under Grant. The terms of any such contract shall impose upon any contractor the obligations below: All contractors shall be subject to the same obligations to which the Distributor is subject under this Agreement; No contractor shall be given power to grant licences for the ENC Service; No contractor shall use the ENC Service for their own purposes; and No contractor shall appoint any sub-contractor to carry out work on the ENC Service. The Distributor shall enforce these conditions against each contractor and any failure to do so will constitute a material breach under this Agreement. The NHS further grants each of the Distributor s contractors permission to store a single copy of each Derived Product for as long as it is necessary to fulfil the purpose of their contract with the Distributor. The prior written permission of the NHS is required should any contractor wish to exceed the rights granted here. 10 Advertising and marketing The Distributor shall not make, or permit to be made, any inaccurate or misleading statement about the International Hydrographic Organization (IHO), the International Hydrographic Bureau (IHB), the NHS or the ENC Service, or allow the name or trademarks of the IHO, the IHB, the NHS or the ENC Service to be used in advertisements without the NHS s prior written approval. The Distributor shall never act, represent, or hold itself out as an agent of the NHS, but at all times and in all correspondence and other dealings with any third parties in connection with the carrying on of its business and the fulfilment of its duties as a NHS Distributor, make it clear that it is acting as principal. Last Amended 5-Dec-12 7 Initials:

8 Where the Distributor wishes to refer to the NHS or the ENC Service in advertising material such material shall be submitted to the NHS for prior written approval; such approval not to be unreasonably withheld. 11 Force Majeure In the event that any party is delayed in the performance of its obligations under this Agreement by Force Majeure, this Agreement shall remain in suspense until the cause thereof ceases. Upon cessation of the cause of the delay, the duties and obligations imposed on both parties by this Agreement shall again become fully operative. However, should such delay exceed 6 six months, either party may give written notice of termination and this Agreement shall then terminate according to clause 18. Force Majeure shall include, although not by way of limitation, strikes, lockouts, riots, sabotage, acts of war or piracy, destruction of essential equipment by fire, explosion, storm, flood or earthquake, and delay caused by failure of power supplies or transport facilities. 12 Assignment The Distributor shall not assign this Agreement, or any part thereof, without the consent of the NHS first being obtained in writing. This includes acquisitions, mergers, split-ups and similar situations. The Distributor shall undertake to inform the NHS of any change of company name, address or proposed take-over within 10 working days. 13 Dispute resolution Before resorting to any external dispute resolution mechanism, the Parties shall attempt to settle by negotiation any dispute in relation to this Agreement. Notwithstanding the experience of a dispute, each Party shall continue to perform its obligations under this Agreement. Disputes shall be handled by the City Court of Stavanger, Norway. 14 Interpretation and Amendment This Agreement shall be governed by and interpreted in all respects with the law of Norway and only the English language version of this Agreement shall be considered enforceable. This Agreement may be amended at any time, in writing, by mutual consent of the parties. No modification, amendment or translation shall be binding on any party unless it is agreed in writing between both parties. 15 Period This Agreement shall be effective from the date given in clause 1 until it is terminated by one of the parties. Notice of termination must be given in writing and will take force 90 days after notice was given. 16 Warranty and indemnity The NHS warrants that it is entitled to grant the Distributor this license, and shall indemnify the Distributor against all claims from third parties claiming otherwise. The Distributor assume the sole risk of interpreting and applying the NHS's products. Last Amended 5-Dec-12 8 Initials:

9 The Distributor shall indemnify the NHS against all claims, actions, suits, damages, liabilities, losses, charges and proceedings that the NHS may incur or be put to as a direct result of: - any breach of this Agreement by the Distributor or its Sub-distributors or contractors. Indemnity shall not extend to cover unwarranted or illicit acts by Sub-distributors or contractors where all reasonable care has been taken by the Distributor to inform them of the limitations of this Agreement. - the unwarranted use by any third party of the ENC Service which have been supplied by the Distributor. Indemnity shall not extend to cover unwarranted or illicit third party use of the NHS's product or the derived products where all reasonable care has been taken by the Distributor to inform third parties of the limitations of this Agreement, and to ensure that such third party use cannot take place. - any modification of the ENC Service through the Distributor's handling of it. The NHS shall indemnify the Distributor against all claims, actions, suits, damages, liabilities, losses, charges and proceedings that the Distributor may incur or be put to as a direct result of: any breach of this agreement by the NHS; or faults in the ENC Service. This clause shall survive the expiration or termination of this agreement. 17 Severability If any part of this agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force. 18 Termination Immediate termination, without prejudice to any existing rights of any party against the other under, or arising from the terms of this Agreement, can be based on the following grounds: A material breach of contract, where the breach is not remedied (if remediable) within 3 - three months; or Failure to renegotiate the Agreement, when the NHS has been obliged to change its licensing policies based on instructions from the HOs participating in the RENC. If the Distributor is wound up, whether voluntarily or compulsorily (except in the case of a winding up for the purpose of amalgamation or reconstruction where the resultant body agrees to be bound by this agreement) or an administrator is appointed to oversee the Distributor s business or the Distributor enters into a composition with its creditors, the NHS may immediately terminate this agreement without prejudice to any existing rights of either party against the other under, or arising from the terms of this agreement. Notice of termination shall be sent by first class mail to the address as given in the preamble to this Agreement. Termination of this Agreement shall, unless the NHS determines otherwise, terminate any contract which relies for its performance on access by the Distributor to the ENC Service. In the event of the termination of this Agreement because of the Distributor s breach of contract, the Distributor shall as soon as practicable erase or have erased all copies of the ENC Service, the Derived Products and their derivatives, held by the Distributor or the Distributor s contractors or distributors. Last Amended 5-Dec-12 9 Initials:

10 Immediately upon the expiration or termination of this Agreement all outstanding fees, expenses and other obligations arising from this Agreement, accrued to the date of termination, shall become due and payable. 19 Confidentiality This Agreement and any information pertaining to this Agreement is not confidential unless otherwise agreed between the Parties. The HO shall in any case have the right to pass this Agreement and any information pertaining to this Agreement to Participants in the NHS RENC for the purpose of monitoring copyright. The HO will ensure that any information passed to a member of the IHO will be given under the conditions of this clause. Signed by Date Name in block capitals For: The Norwegian Hydrographic Service Signed by Date Name in block capitals For: Last Amended 5-Dec Initials: