OOCL LICENSE AGREEMENT AND TERMS OF USE
ARTICLE 1
THE SERVICE
Section 1.01. The Service. The "Service" consists of the Orient Overseas Container Line Limited ("OOCL") web site, currently under the domain name http://www.oocl.com/ (the "OOCL Web site"), including the programs, text, messages, software, sound, pictures, video, graphics or any products or materials (including any e-mail notifications sent by or to OOCL or documents generated thereby) (individually and collectively "Content"), containing and/or generating data and other information (collectively "Data") as may be included in, accessible through or posted upon (individually and collectively "Posted" and where the content requires, may also be referred to as "Posting" or "Post") the OOCL Web site from time to time. You agree that there are no standards of performance for the Service except those that are expressly set forth in this Agreement.
Section 1.02. Your Eligibility. As a condition for your use of the Service, you undertake, represent and warrant that:
(a) you have the legal and other requisite authority to enter into this Agreement with valid and binding effect on you and/or any entity you represent and on behalf of which you are entering into this Agreement; and
(b) you will only use the Service in compliance with this Agreement.
Section 1.03. Changes to the Service and Additional Terms.
(a) You acknowledge and agree that nothing in this Agreement constitutes an undertaking by OOCL to continue providing the Service, or any aspect of the Service, in its present form. OOCL may for any reason whatsoever and without specific notice to you, make additions to, change, modify, discontinue, delete or suspend any aspect of the Service, including access to the Service or any Data or Content item. Use of the Service after any change shall be deemed to constitute full acceptance of the Service as changed.
(b) In addition to the terms contained in this Agreement are the terms contained within the Privacy and Security Statement which can be viewed by accessing the "Privacy and Security Statement" link on the OOCL Web site and additional terms and conditions in connection with the preparation, transmission, storage, printing or other use of bills of lading, sea waybills or other shipping documents ("Bill of Lading Internet Processing Contract"). Such additional terms are deemed to be set out in full in this Agreement together with any other specific terms, guidelines and rules Posted from time to time and all are incorporated as such.
Section 1.04. Variations of this Agreement. OOCL may at any time vary this Agreement by publishing the amended terms and conditions on the OOCL Web site together with a notice that the Agreement has been updated or otherwise amended. You acknowledge and agree that by doing this, OOCL has provided you with sufficient notice of the variation, even where OOCL does not use additional means of notification. The amended Agreement shall be effective automatically upon being Posted or on any later date specified. Your continued use of the Service will be deemed your full acceptance of the Agreement, as amended.
Section 1.05. License to Use. (a) OOCL hereby grants to you, during the term of this Agreement and for your own internal business purposes only ( which shall not include any business whose purpose is competitive with the commercial purpose or purposes or principles of OOCL), a limited, temporary, non-exclusive, non-transferable license to access and use the Service as provided, upon the terms and subject to the conditions of this Agreement. OOCL reserves all rights not expressly granted by it under this Agreement. You may not sell, lease, furnish or otherwise permit or provide access to the Service or its Data or Content to any third parties, unless permitted to do so by this Agreement (including without limitation by Section 2.01) or by OOCL in writing. The license provided to you under this Section 1.05 is limited to those parts of the Service corresponding to your status as a Registered User (see Article 6).
(b) Unless expressly permitted by this Agreement (including without limitation by Section 2.01) or otherwise by OOCL in writing, you may not: (1) copy (including into computer memory and central processing unit cache) or otherwise reproduce any Content or Data; (2) alter, modify or adapt the Service or any Content or Data, including but not limited to translate, reverse engineer (whether by decompiling, disassembling or otherwise) or prepare derivative works; (3) lend, republish, transmit, publicly display, link to, frame or distribute in any way any Content or Data; However, you may:
(i) display, print, copy into computer memory and download Content and Data for your own internal business purposes to use the Service. Any such copies remain the property of OOCL;
(ii) share limited portions of the Content or Data with your business affiliates in a manner and to no greater extent than required in the ordinary course of the shipping business, provided that such business (both yours and those of your business affiliates) shall not include any business remotely in the nature of the Service. You may not present any shared information or data in an unfair, misleading or discriminatory manner. You will attribute source as appropriate under all circumstances; and
(iii) if applicable law authorizes you to perform certain types of reverse engineering and declares unenforceable contractual restrictions that conflict with that law, then you may perform only such reverse engineering or the like as is expressly allowed by, and in strict compliance with, such law but only once you have given us prior notice in writing (to be given in accordance with Section 5.13).
Section 1.06. Termination of Use and Access. You acknowledge and agree that OOCL may, in its sole discretion, limit, suspend or terminate your use of and access to the OOCL Web site for any reason. Neither OOCL nor any of its Related Parties ( as defined in Section 3.04) will be liable to you or to any third party for limiting, suspending or terminating your use of and access to the OOCL Web site or any Losses (as defined in Section 4.01) related to the limitation, suspension or termination of such use and access.
Section 1.07. Proprietary Rights. (a) You acknowledge and agree that: (1) OOCL has certain proprietary rights in the Service; (2) OOCL, its Affiliates, third party information providers and advertisement providers have certain proprietary rights in their respective Content and Data including copyright, trademarks and/or service marks, whether registered or unregistered (including, without limitation to "OOCL"); and (3) the Posting of any Content or Data (including displaying any trademarks or service marks) on this Service neither constitutes a waiver of any proprietary rights nor a transfer by implication, estoppel, or otherwise of any such rights nor the grant of any license to you or any third party. An Affiliate means: (1) with respect to OOCL, a subsidiary of OOCL; any shareholder of OOCL, OOCL's ultimate holding company and any other subsidiary of that ultimate holding company together with OOCL's Subcontractors (as defined in Section 5.08); and (2) with respect to any other entity, a subsidiary of such entity (as defined in Section 736 of the Companies Act 1985) and any holding company of such entity (as defined in Section 736 of the Companies Act 1985), and any other subsidiary of such holding company.
(b) You warrant and agree that you will not: (1) misappropriate, misuse or otherwise violate such proprietary rights; (2) remove or alter any copyright notices or other proprietary notices on the OOCL Web site; (3) remove, alter, block, circumvent or otherwise interfere with any copyright management information or any technological measure used by OOCL or other providers of Content or Data to protect their Content and Data; or (4) use any variations of such trademarks and/or service marks which are confusingly similar thereto.
Section 1.08. Your Grant of License to OOCL. You hereby grant to OOCL, with respect to all Content or Data, including without limitation to e-mail which you may from time to time Post or documents generated thereby, a royalty-free, perpetual, irrevocable, non-exclusive, worldwide and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Posted materials (in whole or in part) worldwide and to incorporate it in other works in any form, media, or technology now known or later developed.
ARTICLE 2
ADDITIONAL OBLIGATIONS
Section 2.01. Confidential Information. You agree to treat all materials related to the Service, including its Content and Data (including, without limitation, company names) as strictly confidential and agree not to disclose such information to any third party unless such information:
(i) becomes generally available to the public other than as a result of a disclosure by you;
(ii) was available to you on a non-confidential basis prior to its disclosure;
(iii) is required to be disclosed by law, provided that any such disclosure shall be subject to you giving advance notice to OOCL in accordance with Section 5.13 of the legal requirement to disclose and providing OOCL with a reasonable opportunity to defend against disclosure under any such legal requirement (including any steps to be taken by you that OOCL may reasonably require) and, in any event, any such disclosure shall be limited to the maximum extent permitted by law; or
(iv) is permitted to be disclosed pursuant to Section 1.05(b)(ii).
Section 2.02. No Illegal Use. You acknowledge and agree that you will not engage in the operation of any illegal business; and that you will not use or export or permit anyone else to use or export the Service, or any part thereof, including its Content and Data (including, without limitation, any technical data and personal information) for any unlawful purpose or in a manner that violates any applicable internal, local, state, national or international law, rule, regulation, court order, administrative proceeding, or any applicable agreement.
Section 2.03. Specific Conduct Rules. Without limiting the applicability of any other obligations or limitations of your use, you agree not to:
(a) post, link, e-mail or otherwise transmit any Content or Data that is unlawful, harmful or otherwise objectionable or violates any governmental agency, local, state, national or foreign laws;
(b) post Content or Data that do not relate to, and fall within the scope of, permitted topics and subject matter as selected and approved by OOCL from time to time and notified to you as such;
(c) disguise, alter or misrepresent any Content or Data or origin of such material including by impersonating any person or entity, creating a false identity or falsely stating or otherwise misrepresenting your affiliation with a person or entity or by manipulating headers or other identifiers;
(d) post, link, e-mail or otherwise transmit any Content or Data that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure/confidentiality agreements or undertakings);
(e) post, link, e-mail or otherwise transmit any Content or Data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party or rights of publicity or privacy;
(f) upload, post, link, e-mail or otherwise transmit any Content or Data that contains viruses, Trojan horses, worms, time bombs, cancelbots or any other harmful or deleterious programs;
(g) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(h) attempt to gain or gain unauthorized access to other computer systems through this OOCL Web site or the Service;
(i) interfere with another individual's or entity's use and enjoyment of the Service;
(j) engage in any activity that could be construed to constitute unsolicited or unauthorized advertising or promotional materials; or
(k) post, link, e-mail or otherwise transmit any Content or Data which is defamatory in any way or of an obscene nature; and
WITHOUT LIMITING THE APPLICABILITY OF ANY OTHER OBLIGATIONS AND IN CONSIDERATION OF YOUR REGISTRATION WITH AND/OR YOUR USE OF AND/OR ACCESS TO THE SERVICE, YOU AGREE TO:
(l) ensure that any and all Data submitted to OOCL is true, accurate, current, complete and not misleading as of the time sent, and that you shall promptly update any Data so submitted and reasonably expected to be relied on by OOCL or any other users (including those contemplated by the disclosure provisions in Paragraph 5 of the Privacy and Security Statement), to keep it true, accurate, current, complete and not misleading; and
(m) comply with the acceptable use policies of all third party networks over which the Service is used and any applicable local laws, rules and regulations regarding on-line conduct.
Section 2.04. Access to the World Wide Web. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based Content and Data, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. OOCL is not responsible for any on-line or other charges you may incur in connection with participating in this OOCL Web site.
ARTICLE 3
OOCL WARRANTY AND EXCLUSIVE REMEDY; DISCLAIMERS OF ALL
OTHER WARRANTIES; LIMITATION OF LIABILITY; AND YOUR
NOTIFICATION AND ASSUMPTION OF CERTAIN SPECIFIED RISKS
Section 3.01. Provision of Services, Exclusive Remedy. (a) OOCL uses commercially reasonable efforts to make the Service available. In the event that the Service is not available as a result of a failure by OOCL to perform its obligations under this Agreement, OOCL will endeavor, giving due regard for the cost, time, and effect on other users of the Service, to correct any such failure.
(a) IN THE EVENT THAT THE SERVICE IS NOT AVAILABLE OR IF YOU BECOME DISSATISFIED WITH THE SERVICE OR THE OOCL WEB SITE, IN ANY WAY AND FOR ANY REASON, YOUR ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE OOCL SERVICE; AND/OR NOTIFY OOCL OF TERMINATION OF USE.
Section 3.02. Disclaimer of All Other Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BEYOND THE WARRANTIES STATED IN THIS ARTICLE, THE SERVICE, THE DATA AND THE CONTENT, WHETHER SUPPLIED BY OOCL, AND THE RELATED PARTIES DEFINED IN SECTION 3.04, ARE PROVIDED "AS IS" AND OOCL DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION, FREEDOM AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR FREEDOM FROM INFRINGEMENT) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
Section 3.03. Notification and Assumption of Risk.
(a) Service may be interrupted and have errors. You acknowledge and agree that OOCL does not warrant that the Service will be uninterrupted or error-free (including virus-free), that Data and Content will be timely Posted, updated, removed, edited or accessible or that defects will be corrected. OOCL and its Affiliates (or their Affiliates) (as defined in Section 1.07) assume no responsibility for misdelivery, timeliness, deletion, alteration or failure to store any of your Postings, personalization settings, requests for delivery or other communication with or through the Service or in respect of Content or Data. By using the Service you agree that you will not rely on the Service being available, uninterrupted or error-free.
(b) Data and Content is for reference only. You acknowledge that although OOCL believes Content and Data not Posted by users to be generally reliable, any Content and Data Posted, including but not limited to, information in shipment details, rates details and in any other part of the Service, may be inaccurate, incomplete or not useful for a particular purpose, and is for your reference only. By using the Service, you agree that you will not rely on any Posted Content and Data and that you will evaluate and assume all risks associated with the use of any such Content and Data.
(c) Content and Data Posted by Users. You acknowledge that although OOCL encourages communication between users, OOCL is not able to ensure that Content and Data Posted by users is accurate, current, true and Posted in accordance with any and all applicable law. You also acknowledge and agree that OOCL cannot prevent people acting under false pretenses, or preventing persons lacking the requisite legal capacity and powers from using OOCL. Furthermore, you acknowledge that a reference to or an appearance on the OOCL Web site is not an indication of the creditworthiness, trustworthiness or acceptability of any user. OOCL cannot and does not control whether or not the users will, or have the ability to, complete their transaction with you. By using the Service, you agree that you must bear all risks directly and/or indirectly associated with your use of Content, Data, information and/or documents generated thereby from and your dealings with other users.
(d) Hyperlinks. You acknowledge that the OOCL Web site may contain links to other web sites operated by third parties ("Third Party Web sites"). OOCL does not endorse or approve of and makes no warranties nor representations regarding the legality of materials on such web sites. In particular, OOCL does not, solely by virtue of having established hyperlinks to Third Party Web sites, endorse any advertising, products, or other data or content available on or through such web sites and does not make any warranties regarding the availability of such web sites. By using any hyperlink to Third Party Web sites, you agree that: (1) you must bear all risks pertaining to the availability of such web sites or resources and (2) OOCL does not authorize infringement of any proprietary rights in materials on Third Party Web sites by hyperlinking to such material.
(e) Transmissions to and from the OOCL Web site. You acknowledge that the technical processing and transmission of the Service, may involve (1) changes to conform and adapt to technical requirements of connecting networks or devices and (2) transmissions over various networks and that no data transmission over the networks comprising the Internet can be guaranteed as totally secure. By using this Service and transmitting Data or Content to or through the OOCL Web site, you agree to evaluate and assume all risks connected with the transmission and technical processing.
Section 3.04. Limitation of Liability.
(a) EXCEPT AS OTHERWISE SET FORTH IN THIS ARTICLE 3, IN NO EVENT WILL OOCL, ITS AFFILIATES, AND/OR THEIR SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTOR AND AGENTS (COLLECTIVELY, THE "RELATED PARTIES") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL CLAIMS, LOSSES OR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OPPORTUNITY, BUSINESS OR DATA), FINES OR PENALTIES ARISING FROM ANY CAUSE WHATSOEVER, WHETHER BASED ON CONTRACT (INCLUDING UNDER INDEMNITY) OR TORT (INCLUDING NEGLIGENCE), OR WHETHER ARISING UNDER STATUTE BY MEANS OF STRICT LIABILITY OR ARISING UNDER ANY OTHER LEGAL THEORY (INCLUDING UNDER CRIMINAL LAW), EVEN IF OOCL OR THE RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES OR DAMAGES.
(b) WITHOUT LIMITING THE GENERALITY AND APPLICABILITY OF THE FOREGOING OR OF ARTICLE 4, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER OOCL NOR THE RELATED PARTIES SHALL BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES OR INJURIES CAUSED BY (I) SHUTDOWN, DELAY, INTERRUPTION OR DEFECT IN THE COMMUNICATIONS WITH AND OPERATIONS WITH THE SERVICE; (II) ANY ERROR, OMISSION, FAILURE, DELAY, ALTERATION, THEFT, USE OR DESTRUCTION OF INFORMATION (WHETHER RESIDING ON THE SERVICE OR ON YOUR EQUIPMENT), REGARDLESS OF CAUSE (UNAUTHORIZED ACCESS, VIRUS OR OTHERWISE); (III) ANY ERRONEOUS, NON-CURRENT, INCOMPLETE OR MISLEADING INFORMATION OR DATA OBTAINED OR DERIVED FROM ANY SOFTWARE, PRODUCTS, SERVICES OR OTHER DATA AND CONTENT USED OR OBTAINED ON, THROUGH OR IN CONNECTION WITH THE SERVICE; OR (IV) ANY UNAUTHORIZED OR INCORRECT PREPARATION, STORAGE, TRANSMISSION, PRINTING OR OTHER USE OF BILLS OF LADING, SEA WAYBILLS OR OTHER SHIPPING DOCUMENTS (WHETHER SUCH ERROR MANIFESTS AS DELIVERY TO A WRONG RECIPIENT, DELAYED DELIVERY, PARTIAL MISDELIVERY, FAILURE OR REFUSAL TO DELIVER; INCORRECT OR INCOMPLETE INFORMATION CONTAINED IN SUCH SHIPPING DOCUMENTS OR OTHERWISE).
(c) IF, NOTWITHSTANDING THE RELEASES AND INDEMNITY SET FORTH IN Article 4, ANY OR ALL OF OOCL OR THE RELATED PARTIES ARE FOR ANY REASON HELD LIABLE TO YOU OR ANY OTHER PERSON IN ANY CIRCUMSTANCE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, THEIR AGGREGATE LIABILITY TO YOU OR ANY OTHER PERSON IS LIMITED TO US$100 OR ITS EQUIVALENT IN LOCAL CURRENCY.
(d) YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY OTHERWISE HAVE UNDER ANY STATUTE OR LAW.
Section 3.05. Exclusions and Limitations. Some jurisdictions do not allow or limit the exclusion of certain warranties or the limitation or exclusion of liability. Accordingly, some of the above limitations may not apply to you. In that case, this Agreement will remain in full force and effect to the extent permitted by law and set forth in Section 5.13(b) of this Agreement.
ARTICLE 4
RELEASES AND INDEMNITY
Section 4.01. Disputes With Users. OOCL is not a party to any transactions between any of the users of the OOCL Web site. Accordingly, if you have a dispute with another user, you hereby waive and release OOCL and all Related Parties that are not acting as a carrier or provider of any transportation service in the relevant dispute (the "Indemnified Party") from all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, but without limitation, attorneysĄ¯ fees), of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (collectively, "Losses"), arising out of or in any way connected with such disputes and you agree to defend, indemnify and hold each Indemnified Party harmless for any such Losses.
Section 4.02. Your Use of the Service . Subject to Section 4.01 you agree to defend, indemnify and hold each Indemnified Party harmless from all Losses due to or arising out of your use of the Service, your connection to the Service, your violation of the Agreement, or your violation of any rights of another or use, transfer or other disposition subsequent to the time when you knew or should have known that a bill of lading obtained on or through the Service was delivered to you in error or contained incomplete, incorrect or other misleading information. This indemnity (together with the one given in Section 4.01) may, without in any way limiting the Indemnified Party, be claimed as a debt or a liquidated demand.
Section 4.03. Assumption of Defense. The Indemnified Party reserves the right, at its own expense, to assume the defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle or otherwise dispose of or compromise any such matter without the prior written consent of the Indemnified Party.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Governing Law and Jurisdiction.
(a) This Agreement is governed by and shall be construed in accordance with English law.
(b) BY ACCESSING OR USING THE SERVICE, YOU SHALL BE DEEMED TO HAVE CONSENTED TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF ENGLAND WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT, AND THAT PROPER VENUE SHALL LIE IN THE AFOREMENTIONED COURTS, AND YOU AGREE NOT TO COMMENCE OR PROSECUTE ANY SUCH CLAIMS, ACTIONS, OR PROCEEDINGS OTHER THAN IN THE AFOREMENTIONED COURTS. THIS JURISDICTION AGREEMENT IS IRREVOCABLE AND IS FOR THE EXCLUSIVE BENEFIT OF OOCL.
(c) You agree and acknowledge that your use of the OOCL Web site shall be deemed to have occurred and taken place solely in England.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.02. Injunctive Relief. You acknowledge and agree that any breach or threatened breach by you of any provision of this Agreement, including, but not limited to, Section 2.01, (confidentiality); and Section 1.07 (Proprietary Rights) will immediately give rise to continuous injury to OOCL irreparable by the payment of damages. Accordingly, OOCL is entitled to seek immediate injunctive relief or specific performance in such circumstances in addition to and without affecting any other rights or legal remedies which may be available to it.
Section 5.03. Links from Other Web sites. (d) You may set up hypertext links from other web sites to the OOCL Web site, if you agree that the OOCL Web site may only be accessed in accordance with this Agreement, and you:
(i) first obtain our written approval (which may be withdrawn without explanation or notice if OOCL, in its sole discretion, decides that such set up is excessive or inappropriate); and
(ii) ensure that the OOCL Web site must be accessed with its domain name displayed and nothing on the other web sites suggests or could be understood to imply that any part of the OOCL Web site is part of the other web sites.
Section 5.04. Monitoring. To ensure compliance with laws, regulations, requests by government agencies and self-regulatory organizations, this Agreement and any operating rules pertaining to the Service, OOCL shall have the right, but not the obligation, to monitor all Content and Data, whether publicly Posted or privately transmitted to, from or through the Service. OOCL may edit, refuse to Post, remove or otherwise act upon Content or Data, OOCL, in its sole discretion, finds to be in violation of this Agreement or otherwise objectionable. Under no circumstances shall OOCL be deemed to have any responsibility for any Content or Data solely by virtue of OOCL providing the Service or exercising its monitoring rights.
Section 5.05. Disclaimer of Agency and Fiduciary Role. OOCL and you are independent contractors. This Agreement is not intended to and does not create any agency, partnership, joint venture, employer-employee or franchiser-franchise relationship or any other fiduciary relationship under any jurisdiction either between OOCL and each Service user or among such users. Except as otherwise expressly provided, OOCL is not the agent, fiduciary, trustee, partner or other representative of anyone using the Service.
Section 5.06. No Financial or Professional Service.
(a) You understand and agree that the Service, including the Content and Data, does not constitute an offer to buy, sell, or trade in any goods or services or any insurance, trade finance or any other financial instruments or commodities or participate in any trading system or undertake, or participate in, a particular trading strategy.
(b) Decisions to buy or sell any goods or services including financial instruments should be based on your own judgment and upon advice from your independent legal and financial advisors obtained outside the Service. You agree not to rely on Content and Data, whether by OOCL or any user of the Service or any service provider, as recommendations or advice to enter into any transactions or otherwise treat the Content and Data as investment advice.
(c) You represent and warrant that you are sophisticated in financial and commercial affairs generally and that you are independently, or in concert with your independent advisors, capable of evaluating the worth of each transaction you enter with OOCL users or OOCL or otherwise, be it buys, or sells, without reliance on the Service.
(d) You agree that neither OOCL, nor any other user of the Service, provides any legal, tax, or accounting advice or advice regarding the suitability or profitability of any goods or services on or through the Service or by providing access to the Service.
Section 5.07. Suspension and Termination. The original term of this Agreement shall commence on the earlier of the date of the Agreement or the date access to the Service is provided and continue until terminated by either party in accordance with its terms. Such termination will be effective immediately upon receipt of notice and discontinuance of use. Following such termination you must immediately discontinue all use of the Service, and discard any temporary copies you may have stored pursuant to the terms of this Agreement. All licenses granted by you, the covenants, representations and warranties made by you, the limitations of liability set forth in this Agreement and all provisions in relation to confidentiality and the indemnity given pursuant to Article 4 shall survive indefinitely, regardless of any termination of this Agreement or any revocation or suspension of authorization to use and access the OOCL Web site.
Section 5.08. Assignment and Sub-Contracting. OOCL shall have the right to assign or subcontract any or all of its obligations under this Agreement at any time. You undertake that no claim or allegation shall be made against any person performing or undertaking such obligations (including without limitation to all servants, agents and Subcontractors of OOCL) other than OOCL, which imposes or attempts to impose upon any such person, any liability whatsoever howsoever arising whether or not arising out of negligence on the part of such person and, if any such claim or allegation should nevertheless be made, you will indemnify OOCL against all consequences thereof. Without prejudice to your indemnity obligations herein, every Subcontractor of OOCL shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to OOCL as if such provisions were expressly for its benefit, and in entering into this Agreement, OOCL does so not only on its own behalf but also as agent and trustee for such persons. The term "Subcontractor" as used herein shall include both direct and indirect subcontractors hired by OOCL to perform OOCL's own obligations under the Agreement or the obligations of any person for whom OOCL acts as agent including, without limitation, any person who provides hosting services in respect of the OOCL Web site, such services including without limitation, managing communication protocols and housing the OOCL Web site pages and any and all software in respect of the OOCL Web site.
Section 5.09. OOCL's Information.
(a) Content and Data on this OOCL Web site may contain general information about OOCL and any of its Affiliates from time to time. EXCEPT FOR THE TERMS OF USE, AND TERMS IN THE PRIVACY AND SECURITY STATEMENT AND UNLESS EXPRESSLY STATED IN CERTAIN DISCLAIMERS AND NOTICES, THIS INFORMATION DOES NOT CONSTITUTE AN OFFER OR INDUCEMENT TO ENTER INTO A LEGALLY BINDING CONTRACT BY OOCL AND DOES NOT FORM PART OF THE TERMS AND CONDITIONS FOR PRODUCTS AND SERVICES RENDERED BY OOCL.
Section 5.10. OOCL Privacy Policy. You hereby provide OOCL and its Affiliates with all necessary consents, licenses, permits and authorizations as may be required by any applicable law or otherwise (including all privacy and other data protection regulations and legislation) as shall be necessary for the transfer of personal data to OOCL or its Affiliates, wherever they may be situated, and for the use and processing of such data by OOCL and its Affiliates or their Affiliates. OOCLĄ¯s use of personal data is subject to our Privacy and Security Statement.
Section 5.11. Copyright Infringement Policy. OOCL accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Furthermore, OOCL has implemented procedures to review and act on written notifications of alleged infringements that conform to the requirements set forth below ("Infringement Notice"). Upon receiving an Infringement Notice, OOCL may, but is not obliged to, in OOCLĄ¯s sole discretion, limit, suspend, or terminate your right to use the Service if OOCL determines, in its sole and absolute discretion, that you are involved in activity that infringes a copyright, patent, trademark or other proprietary right.
The Infringement Notice must be:
(a) directed to OOCL's designated agent,
Corporate Marketing Department (Copyright Agent)
Orient Overseas Container Line Limited
31/F Harbour Centre
25 Harbour Road
Wanchai, Hong Kong
Telephone: (852) 2833 3167
Facsimile : (852) 2531 8221
E-mail: copyright@oocl.com
(b) and include the following information:
(i) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interests believed to be infringed;
(ii) a description of the copyrighted work or other materials believed to be infringed;
(iii) a description of the material believed to be infringing, and information that allows OOCL to locate the material;
(iv) information that will reasonably allow OOCL or its representatives to contact you, such as your name, address, telephone number, and e-mail address;
(v) a statement that you in good faith believe that the allegedly infringing use is not authorized by the copyright owner or other proprietary right owner, its agent or the law;
(vi) a sworn affidavit, made under penalty of perjury, that the above information in your Infringement Notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Section 5.12. Child Online Protection Act Notification. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at, among other locations, the Electronic Frontier Foundation web site, http://eff.org/Censorship/Censorware/, and at the America Links Up web site, http://www.getnetwise.org/americalinksup/parentstips/browsers.html.
Section 5.13. General Information.
(a) The failure or delay of OOCL to exercise or enforce any right, remedy or power provided under this Agreement ( or any other document referred to in it) or provided by law shall not constitute a waiver of such right, remedy or power or affect the same. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. The single or partial exercise of any right, remedy or power provided by law or under this Agreement shall not preclude any other or further exercise of it or the exercise of any other right, remedy or power.
(b) If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, you and we agree that the court should endeavor to give effect to the parties' intentions as reflected in such provision, and the other provisions of the Agreement shall remain in full force and effect.
(c) Except as explicitly stated otherwise, any notices shall be given by e-mail to OOCL or to the e-mail address you provide to OOCL, or such other address, as OOCL or you respectively shall specify. Notice shall be deemed to be given 24 hours after the e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail to the address provided to OOCL. In such case, notice shall be deemed to be given 3 days after the date of mailing.
(d) Transmissions to and from the OOCL Web site or directed to OOCL, including e-mails, can be intercepted by third parties and may not be immediately received by the appropriate business unit at OOCL. Please do not use e-mail to send OOCL communications that: (1) contain confidential information; (2) OOCL requires to be in writing; or (3) need the immediate attention of the appropriate OOCL business unit. Instead, please call at (852) 28333167 or write to:
Orient Overseas Container Line Limited
31st Floor, Harbour Centre
25 Harbour Road
Wanchai
Hong Kong
Attention: Corporate Marketing Department (OOCL Web master)
(e) The section titles in the Agreement are for convenience only and have no legal or contractual effect.
(f) This Agreement contains the entire agreement of the parties with regard to the subject matter hereof and supersedes all prior agreements and understandings of the parties. This Agreement may, however be amended or varied in accordance with Section 1.04.
Section 5.14. Contracts (Rights of Third Parties) Act 1999. The parties to this Agreement do not intend that any term of this Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999 (the "Act"), by any person who is not a party to this Agreement save that the benefits conferred on the Related Parties pursuant to Section 3.04, Subcontractor pursuant to Section 5.08, ) and the Indemnified Parties pursuant to Article 4 respectively shall be enforceable by virtue of the Act. Further, no Related Party, Subcontractor, nor Indemnified Party may enforce or take any step to enforce any such provisions of Section 3.04, 5.08 6.03(a)(i) or Article 4, respectively, without the prior written consent of OOCL, which may, if given, be given on such terms and subject to such conditions as OOCL may in its absolute discretion determine.
ARTICLE 6
ADDITIONAL TERMS APPLICABLE TO REGISTERED USERS
Section 6.01. Conflict with General Terms. The terms and conditions set forth in this Article 6 shall apply to Registered User's use of the Service. Unless specifically excluded by this Article 6, the terms and conditions of this Article shall supplement the terms and conditions set forth in this Agreement, which shall remain applicable. This Article will not limit or reduce Registered User's duties, obligations, or responsibilities for the use of and/or access to the Service under this Agreement. Without prejudice to the generality of the foregoing, this Article 6 shall not preclude OOCL from relying on any provision in this Agreement (including Articles 3 and 4) in respect of any Registered User or former Registered User.
Section 6.02. Becoming a Registered User. (a) To become a "Registered User", you must be (i) an individual or company that meets the eligibility criteria referred to in Section 1.02 above and such criteria as OOCL may set from time to time, (ii) complete and submit a registration form, be approved by OOCL and (iii) agree to be bound by the terms in this Agreement, including this Article 6. The registration form can be submitted either in hard copy, facsimile, via e-mail or on line. OOCL reserves the right to, in its sole discretion, reject any application for registration, withdraw or revoke the approval of any Registered User or limit, suspend or terminate the Registered UserĄ¯s use of and/or access to the OOCL Web site
Section 6.03. Registered User's Obligations.
(a) Provide Accurate and Updated Information. In submitting registration information or other information to or through OOCL and the OOCL Web site (where applicable) , Registered User agrees and warrants and represents that any and all submitted Data is true, accurate, current, complete and not misleading as of the time sent, and that the Registered User shall promptly update any Data submitted and reasonably expected to be relied on by OOCL , to keep it true, accurate, current, complete and not misleading.
(b) OOCL will assign a unique password ("Password") to the Registered User. The Password is for the sole use of the Registered User and the Registered User is responsible for maintaining the security of its Password, including by properly exiting from its account at the end of each session, not disclosing it to third parties.
(c) Registered User agrees to immediately notify OOCL (i) if it believes its Password is known to a third party, (ii) of any unauthorized use of a Password or (iii) of any other breach of security of which it becomes aware, and take any and all reasonable steps which OOCL may require in respect of such unauthorized use or breach of security.
(d) Registered User is responsible, under contract, tort or otherwise, for all activities occurring through the use of the Password (regardless of whether it occurs with Registered User Ą¯s permission). Without prejudice to the generality of Article 3, OOCL and the Related Parties cannot and shall not, directly or indirectly, be liable for any loss or damage arising out of or in connection with Registered UserĄ¯s failure to comply with this Section 6.03.
Section 6.04. Registered User Services.
(a) Bill of Lading Service. (i) Unless otherwise provided in the Bill of Lading Internet Processing Contract between you and OOCL, you may at any time print a copy (but not an original) of a bill of lading, sea waybill or other shipping document to the extent such print function is available to you. You agree that you will not reprint an original bill of lading unless OOCL, in its sole absolute discretion, permits you to do so. OOCL may demand additional assurances and protections, including bank guarantees, letters of indemnity and other requirements, as a condition for permitting you to reprint a bill of lading. You agree and warrant that you will only reprint a bill of lading in compliance with such requirements and conditions.
(ii) Additional Limitation Relating to Bills of Lading. Notwithstanding any contrary provision or authorization in any Bill of Lading Internet Processing Contract or otherwise, you acknowledge and agree that the authority to print any original or copies of a Bill of Lading is strictly limited to Registered User, and cannot be delegated or endorsed to any business associate or any other person without OOCLĄ¯s written approval. Without limiting the generality and applicability of the foregoing, Registered User acknowledges and agrees that (1) it shall not designate any business associate or other third party or otherwise give such third party access to the bill of lading print function, and (2) it shall not electronically endorse or transfer any bill of lading.
(iii) Indemnification. For avoidance of doubt, you specifically acknowledge and agree that you, in accordance with Section 4.02, will be liable for defending, indemnifying, and holding harmless each Indemnified Party from all Losses due to or arising out of any violation of the provisions in this Section.
(iv) Bill of Lading can be incorrectly delivered, misappropriated and contain errors. You acknowledge and agree that OOCL and its Affiliates (and their Affiliates) (as defined in Section 1.07) does not warrant that bills of lading, sea waybills or other shipping documents prepared, transmitted, stored, printed (or otherwise delivered) on or through the Service will be free from errors, be timely and accurately delivered, or be safe from interception or other misappropriation by unauthorized persons, regardless of the source of such problems (including system failures, system configuration errors, mechanical problems, communication errors, security shortcomings, mistakes by OOCL or otherwise). Erroneous content, incorrect delivery and misappropriation of shipping documents may result in significant losses to you, including loss of any shipped goods. Such losses may not be covered by your insurance. You acknowledge that you have the option to obtain shipping documents by more traditional means and agree to carefully evaluate the risks associated with this Service. By using this Service to prepare, transmit, store, print, or otherwise create or use bills of lading, sea waybills or other shipping documents you agree to assume all risks associated therewith.
(b) Internet Work Order Service. The internet work order ("Internet Work Order Service") is a tool provided to Registered Users to facilitate information exchange and contract formation for the provision of transportation service by the Registered User.
(i) Registered User may be engaged to provide certain of its transportation services to its customers through the Internet Work Order Service by accepting an internet work order proposal (including together (if relevant) amendments thereto "the Internet Work Order Proposal") online. By accepting the Internet Work Order proposal online, Registered User undertakes to perform the work order in accordance with the direction set out in the Internet Work Order proposal and the additional terms and conditions governing the transportation service provided by Registered User Posted on and or referred to in the OOCL Web site ("IWO Contract"). In consideration of the use of the Internet Work Order Service, Registered User may not unilaterally revoke an Internet Work Order that has been accepted by you.
(ii) Registered User undertakes to procure, assist and ensure that no claim or allegation shall be made against the Indemnified Party in respect of or in connection with Internet Work Order Services or the carriage of cargo and or container, if such claim or allegation nevertheless be made, Registered User shall indemnify the Indemnified Party against all consequence save to the extent that OOCL caused by OOCL's gross negligence or willful misconduct.
(iii) Subject to the terms of this Agreement, Registered User may have access to certain Data and/or Content Posted by RU Customer via the OOCL Web site.
