1.1 The following End User License Agreement (EULA) shall govern all agreements between ChartWorld International Ltd./ ChartWorld GmbH and its Customers for the provision of digital data for use in Intranet and Internet Data Services (collectively: Data Service), such as, but not limited to, official Electronic Navigational Charts (ENCs), Inland ENCs, Professional+ charts, ChartWorld International Ltd./ ChartWorld GmbH digital charts, ChartWorld Information Overlay CIO+.
1.2 All aspects of the supply of such Data Service shall also be governed, in conjunction with this EULA, by ChartWorld International Ltd./ ChartWorld GmbH’s General Standard Purchase Terms and Conditions (GSPTC) and by any separately stipulated contracts (Ancillary Contracts) entered into by ChartWorld International Ltd./ ChartWorld GmbH and the Customer relating specifically to the supply of such Data Service.
1.3 ChartWorld International Ltd./ ChartWorld GmbH does not recognise any other purchase terms, general standard terms or other stipulations made by the Customer. This shall apply even if the Customer makes counter confirmations with reference to Customer’s own terms and conditions. Such terms and conditions shall not become part of the business relations between ChartWorld International Ltd./ ChartWorld GmbH and the Customer even if ChartWorld International Ltd./ ChartWorld GmbH remains silent thereon or effects delivery of the Data Service. This EULA shall apply, as well, if ChartWorld International Ltd./ ChartWorld GmbH effects delivery of Data Service without reservation of rights, although being aware that the Customer’s terms and conditions are at variance with this EULA.
1.4 Deviations from this EULA are effective only if they have been explicitly agreed upon or confirmed by ChartWorld International Ltd./ ChartWorld GmbH in writing. An oral waiver of this form requirement is not allowable.
2.1 ChartWorld International Ltd./ ChartWorld GmbH grants to Customer a non-transferable, non-exclusive License to use the Data Service in internet data service agreed upon in the Ancillary Contract (e.g. purchase contract via Internet or purchase order).
2.2 All the intellectual property rights used or embodied in connection with the Data Service, especially, without being limited to, trade secrets, patents, design rights, copyrights, trademarks, service marks, database rights, or other proprietary knowledge (Intellectual Property Rights), shall remain the property of their respective owner and shall not be transferred to Customer.
2.3 Customer shall neither remove nor alter any existing identification marks, copyright or identity marks, nor shall Customer disable the correct display thereof.
2.4 Customer shall be entitled to copy the provided Data Service only, if such copy is necessary for the agreed upon use of the Data Service, or to make one (1) backup copy for the purpose of archival storage.
3.1 The Data Service should be used for background display in an Internet data service offering information overlays. Customer shall refrain from any reproduction or copying of the Data Service. Customer shall use adequate mechanisms to ensure, to the best of Customer’s ability, that the Chart Data will be used in full compliance with the permitted uses provided herein and for no other purpose whatsoever.
3.2 Access to the Data Service should be provided only to Registered Users. Registered User is defined as an individual – user of the Customers System who has access to the Chart Data from one electronic device, such as a computer, a tablet, or a smartphone. The Registered User must have a unique user ID, such as, username or e-mail address. The number of registered users should not exceed the number of users defined in the Ancillary Contract (e.g. purchase contract via Internet or purchase order).
3.3 A Registered User is entitled to use the Chart Data on an unlimited number of displays, as long as the displays are registered to one single End-User License on board a vessel. The displays must be a part of a single vessel’s navigation and/or operational system. The use of a single Official ENC End-User license is restricted to a maximum of 5 (five) hardware systems per license in case of shore-based installations. Shore based installations are defined as, but not limited to, VTS, pilots, fleet operators, administrations and maritime inspectors. Pilots are defined as individual End-Users, each requiring a separate license. A pilot can use the ENC license on a maximum of five hardware systems (e.g. PPU, PC, laptop, tablet, cell phone).
3.4 Customer shall not be entitled to alter, extend, modify, or adapt the Data Service in any form whatsoever without express written permission from ChartWorld International Ltd./ ChartWorld GmbH and only where allowed by the owner of any Intellectual Property contained in the Data Service. However, on ChartWorld International Ltd./ ChartWorld GmbH’s request Customer shall carry out or let carry out such alterations, extensions, modifications or adaptations, considered necessary by ChartWorld International Ltd./ ChartWorld GmbH for the integration and usability of the Data Service for the Customer’s specific software, programs or program elements.
3.5 Customer shall neither be entitled to reveal or make available hard copies of the Data Service, nor to surrender, to transfer or to convey such hard copies in any other way to third parties without express written permission from ChartWorld International Ltd./ ChartWorld GmbH and only where allowed by the owner of any Intellectual Property contained in the Data Service.
3.5 Furthermore, Customer shall neither be entitled to integrate the Data Service into other Data Service bases, nor to decompile, disassemble or reverse engineer the Data Service without express written permission from ChartWorld International Ltd./ ChartWorld GmbH and only where allowed by the owner of any Intellectual Property contained in the Data Service.
3.6 Customer shall neither be entitled to sell or to transfer, to grant license or sublicense, to hire or lend out the Data Service, nor shall Customer be entitled to affect Intellectual Property Rights or any other right embodied in or in connection with the Data Service in any other way or by any other means without express written permission from ChartWorld International Ltd./ ChartWorld GmbH and only where allowed by the owner of any Intellectual Property contained in the Data Service.
3.7 Customer shall undertake all necessary precautions to prevent unauthorised access to the Data Service, especially without limitation, by third parties. Furthermore, Customer shall ensure, that Customer’s members of staff, employees, servants, agents, or any other person acting for or on behalf of Customer (Agents) are aware of and strictly obey this obligation, as well.
4.1 In any case of a breach of the restrictions set forth in Art. 3, whether by Customer or by its Agents, Customer shall pay ChartWorld International Ltd./ ChartWorld GmbH a non-fault contractual penalty of € 25.000,00. ChartWorld International Ltd./ ChartWorld GmbH’s other claims and rights, if any, shall not be affected or prejudiced by such contractual payment.
4.2 Furthermore, Customer shall fully indemnify ChartWorld International Ltd./ ChartWorld GmbH from all costs and damages in the event that the owner of the Intellectual Property Rights embodied in or in connection with the Data Service should raise a claim because of a breach of the restrictions as set forth in Art. 3, whether by Customer or by its Agents.
In the event of the Customer or Customer’s vessels are being subject to the Safety of Life at Sea (SOLAS) Convention, Customer fully accepts that the use of the Data Service does not alter the Customer’s obligation to adhere to the terms of the SOLAS Convention. Unless the Data are official ENC which meets SOLAS chart carriage requirements, the Data may be used solely as a navigational aid, not as the sole or primary method of navigation. The Data Service is derived, in part, from material provided with the permission of various national hydrographic offices and other third parties (the “Licensors”).
No Licensor and neither ChartWorld International Ltd./ ChartWorld GmbH have verified the Data and no Licensor and ChartWorld International Ltd./ ChartWorld GmbH accept any liability for the accuracy of reproduction or for any modifications that may have been made to the information supplied. Furthermore, no Licensor and ChartWorld International Ltd./ ChartWorld GmbH warrant that the Data meet regulations to be considered as an appropriate product for navigation or that it contains the latest hydrographic information available. Electronic charts are an aid to navigation designed to facilitate the use of official government charts, not replace them. New charts or Notice to Mariners corrections will render the Data obsolete and inaccurate.
Updates may be available from ChartWorld International Ltd./ ChartWorld GmbH. The Data Service licensed hereunder is inadequate as a primary means of navigation and should be used only as supplements to official government charts and traditional navigation methods, unless otherwise specified by National Maritime Authorities. Only up-to-date official government charts and notices to mariners contain all information needed for the safety of navigation and, as always, the captain is responsible for their proper use and awareness of current conditions.
6.1 Except as stated otherwise in the following provisions of this Article, ChartWorld International Ltd./ ChartWorld GmbH’s liability for damages and losses shall be excluded, whatsoever cause in law such liability may have and of whatsoever nature such damages and losses may be. Such exclusion of liability shall apply especially, without being limited to, to direct, indirect and consequential damages and losses, to claims based on fault prior to conclusion of contract (“culpa in contra-hendo”; Sec. 311 subsec. 2 Bürgerliches Gesetzbuch; German Civil Code), to claims based on breach of contractual duties and obligations not being related to deficiencies of the granted License, to tortious claims based on property damages and to claims for vain expenses.
6.2 ChartWorld International Ltd./ ChartWorld GmbH shall be liable in accordance with German Law if Customer claims damages and losses based upon ChartWorld International Ltd./ ChartWorld GmbH’s, its agents’ or servants’ intent or gross negligence. Inasmuch as ChartWorld International Ltd./ ChartWorld GmbH is not held liable by Customer for intentional breach of contract, ChartWorld International Ltd./ ChartWorld GmbH liability for damages and losses shall be limited to the reasonably foreseeable and typically incurable damages and losses.
6.3 Furthermore, ChartWorld International Ltd./ ChartWorld GmbH shall be liable in accordance with German Law if ChartWorld International Ltd./ ChartWorld GmbH is at fault with a breach of an essential contractual obligation (“cardinal obligation”). However, liability shall be limited in this case to the reasonably foreseeable and typically incurable damages and losses, as well.
6.4 ChartWorld International Ltd./ ChartWorld GmbH’s liability for negligent loss of life, or injury to body or health remains unaffected as well as its liability in accordance with product liability laws.
6.5 In case ChartWorld International Ltd./ ChartWorld GmbH should be liable, liability for the loss of Customer’s Data Service shall be limited to the reasonable costs of recovery of such Data Service which would have been incurred if a backup copy of such Data Service would have been made at reasonable intervals.
6.6 Insofar and inasmuch as ChartWorld International Ltd./ ChartWorld GmbH’s liability is limited or excluded, such limitation or exclusion shall apply to ChartWorld International Ltd./ ChartWorld GmbH’s members of staff, employees, servants and agents, as well.
7.1 In the event, that a provision in this EULA should be or become fully or in part invalid or unenforceable, the validity or enforceability of the remaining provisions of this EULA as well as the validity or enforceability of this EULA itself shall not be affected or impaired in any way. In such an event, the parties shall undertake to replace in writing the invalid or unenforceable provision by a provision which best meets the purpose, particularly the aspired economic and legal purpose of the replaced provision.
Same shall apply in the event that the execution of this EULA should reveal an omission, which the parties would have avoided, if they would have perceived such omission.
7.2 Place of performance for all obligations under this EULA shall be the Hamburg, Germany.
7.3 Hamburg shall be the exclusive place of jurisdiction if Customer has the status of a merchant pursuant to the Handelsgesetzbuch (German Commercial Code) or if Customer should relocate Customer’s domicile or place of abode after conclusion of this License Agreement out of the area of application of the Zivilprozeßordnung (German Code of Civil Procedure) or if Customer’s domicile or place of abode should be unknown at the moment the action was brought to court. ChartWorld International Ltd./ ChartWorld GmbH, however, shall be entitled to prosecute its rights and claims in Customer’s local court, as well.
7.4 This EULA shall be governed by the laws of the Federal Republic of Germany without regard to conflict of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.