OceanScore – General Terms and Conditions (“GTC”)

1. Definitions

1.1 ‘GMS’ means Green Mare Services Lda. & Comandita, Rua da Alfândega, n.o 78, 3.o B, 9000-059 Funchal, Madeira, Portugal, or, if applicable, a different distributor which concludes the contract with the Client (e.g. OceanScore GmbH), as designated in the respective Order.

1.2 ‘Client’ means the entity who has entered into a Subscription with GMS.

1.3 ‘Parties’ means GMS and the Client (each individually referred to as ‘Party’)

1.4 ‘Order’ means a binding offer by the Client to subscribe to a specific OceanScore Product by the official means provided by GMS (e.g. analogue or digital order form).

1.5 ‘Subscription’ means, upon GMS’s acceptance of the Client’s Order the Client’s subscription and access to the ordered OceanScore Product subject to these GTC.

1.6 ‘Confidential Information’ means any non-public information, data, materials, trade secrets, know-how, or proprietary information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the business relationship of the Parties. Confidential Information shall not be information which

• a. is already in the public domain at the time of disclosure or subsequently becomes part of the public domain through no fault of the Receiving Party.
• b. is independently developed by the Receiving Party without reference to the Confidential Information disclosed under this agreement.
• c. is lawfully obtained by the Receiving Party from a third party without any obligation of confidentiality.
• d. is required to be disclosed by law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party prompt notice of such requirement to allow the Disclosing Party an opportunity to seek protective measures.

1.7 ‘OceanScore Platform’ means the digital platform owned and operated by GMS for the distribution of some digital OceanScore Products.

1.8 ‘OceanScore Products’ means any and all products distributed by GMS (including digital and analogue, standard and customized products) as determined in the respective Order.

2. Scope of these GTC and Conclusion of Contract

2.1 These General Terms and Conditions (“GTC”) govern the Client’s legal relationship with GMS in connection with the Client’s Subscription of the OceanScore Products.

2.2 Your Subscription shall be subject to the conclusion of separate Orders which incorporate these GTC. GMS reserves the right to accept or deny any individual Orders in its sole discretion.

2.3 Use of the OceanScore Platform and the OceanScore Products is strictly restricted to commercial customers within the meaning of Sec. 14 German Civil Code (BGB).

3. Access to the OceanScore Products

3.1 Unless agreed otherwise between the Parties, the digital OceanScore Products are offered as Data-as-a-Service (DaaS) via digital remote access (e.g. data transfer via an API) or in digital copy and; analogue OceanScore Products are offered in text form.

3.2 The Client shall be responsible for assessing if the Client’s IT equipment (including systems and security standards) is compatible with the OceanScore Platform and OceanScore Products. GMS assumes no responsibility in connection therewith.

3.3 GMS does not warrant that the OceanScore Platform and/or OceanScore Products will be available without interruptions. However, GMS will make reasonable efforts to reduce any downtime due to planned or unplanned maintenance or malfunctions.

4. Data Quality / No Financial, Tax or Legal Advice

4.1 ALL DATA INCLUDED IN THE OCEANSCORE PRODUCTS ARE OFFERED AS A SERVICE WITHOUT ANY WARRANTY REGARDING THE ACCURACY AND/OR TIMELINESS OF THE DATA. THE CLIENT IS AWARE THAT WHILE GMS IS USING BEST EFFORTS TO ENSURE ACCURACY AND TIMELINESS OF THE DATA, THE METHODOLOGY USED FOR THE CALCULATION IS NOT ABLE TO GUARANTEE EXACT RESULTS IN EACH CASE. THE INFORMATION IS THEREFORE SOLELY INTENDED AS QUALIFIED APPROXIMATIONS AND ESTIMATES BASED ON THE ALGORITHMS DEVELOPED BY GMS. GMS DOES NOT VERIFY OR CERTIFY ANY RAW DATA PROVIDED BY THIRD PARTIES AS BASIS FOR THE DERIVED DATA ESTIMATED BY GMS.

4.2 THE OCEANSCORE PRODUCTS (IN PARTICULAR, BUT NOT LIMITED TO, ANY REVIEWS AND SCORES) ARE AND HAVE TO BE VIEWED AS NON-BINDING OPINIONS AND NOT AS RECOMMENDATIONS TO PURCHASE, HOLD OR SELL SECURITIES OR MAKE ANY OTHER FINANCIAL DECISIONS. GMS DOES NOT PROVIDE ANY FINANCIAL, LEGAL, TAX, ADVISORY OR CONSULTANCY SERVICES TO THE CLIENT NOR DOES GMS PROVIDE ANY ADVICE ON ANY TRANSACTIONS OF THE CLIENT. EACH CLIENT SHALL ASSESS THE INFORMATION PROVIDED BY GMS INDEPENDENTLY WITH REGARD TO THE SPECIFIC INTENTS AND PURPOSES OF THE CLIENT.

4.3 In the event that the Client deems any information provided in the OceanScore Products inaccurate, incomplete, or outdated the Client may notify GMS thereof. Any such notification shall be supported by relevant documentation and sufficient facts and information on which the Client’s understanding is based on. GMS shall determine, based on the Client’s notification, if a correction of the information is necessary.

4.4 In cases of notifications pursuant to Sec 4.3 the Client agrees that GMS may use the provided vessel data (i) to update existing data that has either been estimated, is outdated or less accurate than the data provided by the Client and to display any corrected vessel data in OceanScore Products as well as (ii) for the internal evaluation, validation and optimization of GMS own data and algorithms and (iii) the development of derived data, products, reports and statistics.

4.5 In any other cases in which the Client provides GMS with specific vessel data (e.g. by submitting data sheets such as ‘noon reports’ to GMS), GMS will in general solely use such data for (i) the provision of the services to the Client, (ii) to update estimated data already included in OceanScore Products as described in Sec 4.4 (i) and (iii) for the internal purposes described in Sec. 4.4 (ii) (e.g. validation and optimization of GMS own data and products). Apart from corrections to data already displayed, GMS will not display the data vis-à-vis third parties, unless the Client grants GMS express consent in an individual case. However, GMS may use the data to create and display in products aggregated and/or derived data and products, provided that such aggregated and/or derived data does not allow any conclusions to the Client or the specific vessel. For the avoidance of doubt: GMS will treat documents provided as proof by the Client (e.g. certificates) confidential.

5. Restricted Rights of Use

5.1 For the term of the Subscription, and conditioned upon the Client’s compliance with these GTC GMS grants the Client a non-exclusive, non-sublicensable, non-transferrable, revocable right to access and use the subscribed OceanScore Products.

5.2 The license is limited to the Client’s internal informative use. The Client is solely allowed to access and display the OceanScore Products as provided by GMS. Otherwise, unless expressly agreed in writing, the Client shall be prohibited from copying, modifying, creating derivatives of, distributing, broadcasting, transmitting, reproducing, publishing, licensing, transferring, selling, or otherwise using any information contained in or derived from the OceanScore Products. In particular, but without limitations, the Client may not distribute or otherwise disclose any information contained in or derived from the OceanScore Products to any third parties and shall not copy, download or incorporate any such information in a database of its own. The Client shall treat the OceanScore Products and any and all information and data therein or relating thereto as Confidential Information (subject to the exceptions set forth in Clause 1.6).

5.3 The Client is not permitted to commercialize the OceanScore Products and/or information contained therein in any product, service, derivative or modified work or other commercial offer of any kind.

5.4 Any and all proprietary rights, including, without limitation, copyrights, trademarks, trade secrets, patents, designs and database rights, in and to the OceanScore Platform and/or the OceanScore Products, including, without limitation, any and all of the information, designs and software contained or included therein, are and shall at all times remain the sole and exclusive property of GMS.

6. Duties of the Client

6.1 The Client shall ensure that any and all information the Client provides to GMS is accurate, current and complete.

6.2 The Client shall ensure and be fully liable and responsible for its user’s compliance with the terms, conditions, limitations, and restrictions set forth in these GTC.

6.3 Since the Client is responsible for all activities under the Client’s account, the Client is responsible for keeping all passwords strictly confidential at all times and for taking appropriate and sufficient precautions against unauthorized access.

7. Term

7.1 Unless agreed expressly otherwise by the Parties in an Order, any Subscription of an OceanScore Product shall commence as of the date on which GMS accepts the Client’s Order and will continue for an initial term of twelve (12) months thereafter. The term will automatically renew for successive twelve (12)-month terms unless terminated in accordance with these GTC.

7.2 Either Party may terminate the Subscription by issuing a notice of termination in written form at least three (3) months’ prior to the expiration of the then-current term. Such termination shall become effective at the end of the then-current term.

7.3 The Party’s statutory right for termination with immediate effect for cause shall remain unaffected. Such right shall in particular exist if

• a) a Party is in material breach of any of its obligations under the contract, if it can be cured or remedied, has not been cured or remedied by the breaching Party within fourteen (14) days of its receipt of a written request from the affected Party;
• b) the continuance of the Subscription is not permissible or prohibited under applicable law and/or pursuant to a regulatory statement or order of a court or regulatory authority of competent jurisdiction;
• c) GMS discontinues, withdraws, or otherwise ceases to offer the respective OceanScore Product;
• d) the Client has failed to pay the applicable fees and remains delinquent for more than thirty (30) days upon receipt of a written warning by GMS.

7.4 Upon the effectiveness of the termination of a Subscription, any and all rights granted to the Client hereunder and the Client’s access to the affected OceanScore Product shall immediately cease and terminate and the Client shall immediately cease and terminate its access and use.

8. Fees and Payment

8.1 For each OceanScore Product the Client will pay the fees set forth in the Order.

8.2 The fees shall be due and payable in full as of the commencement date of each contract year 14 days after receipt and in accordance with the pertaining invoice.

8.3 The Client’s use of and access to the OceanScore Products are subject to the Client’s timely payment of any and all fees due hereunder. The Client acknowledges and agrees that GMS may suspend and/or terminate the Client’s Subscriptions in the event that the Client fails to pay any applicable fees.

9. Limitation of Liability

9.1 In general, the liability of GMS shall be limited to the breach of essential contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on (so-called cardinal obligations), and to the foreseeable damage typical for the contract at the time of its conclusion.

9.2 The foregoing limitation of liability does not apply for (i) damages arising from injury to life, body and/or health (ii) damages which are based on gross negligence or intent by GMS or breach of a guarantee, as well as, if applicable, (iii) liability under the Product Liability Act.

9.3 To the extent that GMS’s liability is excluded or limited hereunder, the same limitations and exclusions shall apply to the personal liability of GMS’s officers, managers, directors, employees, representatives, and agents.

10. Force Majeure

10.1 If GMS is prevented from fulfilling its contractual obligations due to force majeure, GMS shall be released from the respective obligation to perform for the duration of the impediment as well as a reasonable start-up period without being obliged to compensate the Client for damages. The same shall apply if the fulfillment of the obligations is made unreasonably difficult or temporarily impossible for us due to unforeseeable circumstances for which we are not responsible, in particular due to official measures (irrespective of their legality), official orders, measures or restrictions due to an epidemic (in particular the COVID-19 pandemic), energy shortage, lack of means of transport, power failure, failure of telecommunication connections or significant operational disruptions.

10.2 Force majeure shall be all unusual, unforeseeable events independent of the will and influence of GMS and/or the Client, such as in particular natural disasters, war, terrorist attacks, sabotage, political unrest, epidemics, official measures, import and export restrictions, blockades, strikes, lockouts and other industrial action.

10.3 GMS shall be entitled to withdraw from the contract if an impediment within the meaning of this clause 10 lasts longer than three months and the performance of the contract becomes impossible for GMS pursuant to § 275 BGB. The Client shall be entitled to withdraw from the contract if an obstacle within the meaning of this clause 10 lasts longer than three months and the Client is no longer interested in the performance.

11. Changes to these GTC

11.1 GMS reserves the right to amend these GTC from time to time (in particular in the event of changes in our business processes, the law and/or supreme court rulings).

11.2 GMS will announce any changes to the GTC to the Client by e-mail and make special reference to the specific changes. You will be given the opportunity to object to the amendment of the GTC within a period of 6 weeks after the announcement of the amendment. With each announcement of a change, we will separately inform you of the current deadline and the consequences of a failure to object.

11.3 If the Client does not object in due time, the modified GTC shall be deemed accepted. In the event of an objection, the contract shall continue to exist under the original conditions. GMS shall then have the right to terminate the contract within 2 months of the Client’s objection with a notice period of 3 months.

12. Miscellaneous

12.1 The Agreement shall be governed by and be construed in accordance with the laws of the Federal Republic of Germany, without giving effect to any choice of law doctrines. Any dispute hereunder or in connection herewith shall be subject to the exclusive jurisdiction of the courts of competent jurisdiction located in Hamburg, Germany, in the case of disputes assigned by law to the local courts, the local court of Hamburg-Mitte (Amtsgericht Hamburg-Mitte). The statutory provisions on jurisdiction for judicial dunning proceedings shall remain unaffected by sentence 2.

12.2 Neither any agreement incorporating these GTC nor any rights conferred upon the Client hereunder shall be assigned by the Client without GMS’s prior written consent, which consent GMS may condition, withhold, or delay in its sole discretion. Any attempted assignment or transfer in violation of this provisions shall be void ab initio. GMS may assign its rights hereunder at any time in its discretion without notice or consent.

12.3 Except as expressly provided otherwise herein or in separate written agreements between the Parties, any notices and declarations by a Party must be made in text form (e-mail is sufficient).

12.4 Should any individual provision in these GTC be or become wholly or partially invalid or unenforceable as determined by a court of competent jurisdiction, this shall not affect the validity of the remaining provisions, and the invalid or unenforceable provisions shall be construed so as to make them valid and enforceable as closely aligned with the original intent thereof. The same applies mutatis mutandis in case of a contractual gap.