Terms & Conditions
GENERAL TERMS AND CONDITIONS FOR SERVICES (“GTC”)
1. Parties and scope: The terms and conditions contained in this General Terms and Conditions (“GTC”) together with any applicable Annex, Order or other terms and conditions referred to in these GTC (together, the “Contract”) are agreed between an True North Marine, a Accelleron Group Company (“Accelleron”, “we”, “us” or “our”) and the contracting entity (“Customer”, “you” or “your”) indicated in the Order. The Contract governs our provision and your use of the Services as well as your access to the Portal (each as defined below). Any conditions stipulated by the Customer which are in contradiction to these GTC shall only be valid if expressly acknowledged by Accelleron in writing
2. Provision of Services:
2.1. Services & Access to the Portal: Subject to the terms of the Contract we grant you a non- exclusive, non-transferable, limited and revocable right to use the Services and the deliverables provided as part of the Services, if any, and access the Portal for your internal business purposes and in accordance with the Contract and applicable law. Where expressly set out in an Order, you may permit third parties under contract with you to use the Services and access the Portal for (i) supporting your internal business purposes; or (ii) purposes of such third parties receiving a service from you. You are responsible for any activities of such third parties.
2.2. Your account on the Portal: Your use of the Services may require you to establish an account on the Portal. For purposes of administrating the account, you may be further required to provide contact information (for example name, business telephone number, address, email and user IDs) and other information as may be required to create an account on the portal. You are responsible for the accuracy and completeness of this information and for any and all activities that occur under an account that is attributable to you (including, for the avoidance of doubt, activities by third party Users). You will ensure that (i) the Users securely store and keep credentials (e.g. username, passwords, certificates, keys) confidential; (ii) the credentials that are allocated to a specified User are only used by such User; and (iii) the account is only used in relation to the Services and in such a way so as not to impair or compromise the stability or security of the Portal, the Portal or the Services. You notify us immediately on discovering any attempted or actual unauthorized use of an account that is attributable to you and immediately follow our instructions when we are asking you to change a User’s access credentials. We reserve the right to change a user’s access credentials if we are of the opinion that such change is necessary for security reasons
2.3. Changes to the Services: We may make reasonable changes to the Services that do not materially harm their nature, quality, or security. If a change does materially impact these aspects or if a Service is discontinued, this will only occur due to legal, safety, or security requirements, or due to changes in or termination of a subcontractor relationship. We’ll notify you of any such material change or discontinuation. You may terminate the affected Service within 30 days of notification with 30 days' notice, and we’ll refund any prepaid amounts for the remaining term on a pro-rata basis. Continuing to use the Service beyond the 30-day period signifies your acceptance of the change. We may, at our discretion, continue providing previous versions of a Service and will inform you if we do so.
3. Data protection and security
3.1. Data protection:
Each party shall comply with all applicable laws and regulations related to the protection of Personal Data, including but not limited to laws in the jurisdictions where the Services are provided. Neither party shall unreasonably withhold or delay its consent to amendments to this Agreement necessary to ensure compliance with such laws or orders from competent authorities.
We may collect, use, store, and process Personal Data strictly for the purposes of providing the Services or as otherwise agreed upon in writing with You, in accordance with our Data Privacy Policy. Our Data Privacy Policy is incorporated by reference into this Agreement and will govern our use of Personal Data to the extent not explicitly addressed herein.
The parties acknowledge that compliance with data protection obligations may require the execution of additional agreements, such as data processing or data transfer agreements. Upon request by one party, the other party agrees to promptly enter into such agreements as required by applicable law or any competent authority.
3.2. Security: The level and extent of IT security measures shall comply with Good Industry Practice and applicable regulatory requirements.
4. Charges and payment
4.1. Payment terms. Unless otherwise agreed in the Contract, all prices shall be deemed to be net, ex works, in freely available USD without any deductions. In consideration for the provision of the Services, you will pay the charges as set out in the Order. You will pay all invoiced amounts due under the Contract within 30 (thirty) days from the date of the invoice in full without any set-off, deduction or withholding. Late payment interest of 1.5% per months or, if such rate is not permitted, the highest rate per- mitted under applicable Law will be charged in case of late or incomplete payment. Payment will be deemed to be fulfilled when USD (or any other currency otherwise agreed in the Contract) have been made freely available to us at our domicile.
4.2. Taxes and customs. Our charges are net, i.e. without taxes or other transaction levies. You are responsible for the payment of (i) any value added tax, sales tax, customs fee or other transaction levies as applicable; and (ii) any withholding taxes that either party must pay arising from international transactions. If you are exempt from the payment of any taxes, you must provide us with a valid tax exemption certificate or proof of your direct payment of taxes to the applicable tax authority; otherwise, you must pay to us all such taxes. Subject to the foregoing, we will be solely responsible for all taxes based on our income
5. Reports:
5.1. We will provide Reports or grant access to Reports as part of the Services. The content in these Reports is based on data and information provided by or on behalf of you, through or in connection with our provision or use of the Services, including, without limitation, third- party information, data, and materials supplied by you. Accelleron does not verify the accuracy or completeness of this data/information. The Reports shared as part of the Services
are intended for informational purposes only and do not guarantee compliance, performance, or cost outcomes. Accelleron is not responsible for any decisions, losses, or third-party claims arising from reliance on these results.
6. Your responsibilities:
6.1. Collaboration. You shall: (i) cooperate with us in all matters relating to the Services; (ii) provide us with such information and materials as Accelleron may reasonably require in order to provide the Services, and ensure that such information is accurate, timely and complete in all material respects.
6.2. Customer Default. If our performance of any of its obligations under the Contract is prevented or delayed by any act or omission by you, including breach of the Contract, or failure by you to perform any relevant obligation ("Customer Default") we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Customer Default.
7. Proprietary rights:
7.1. Your Content: We will not acquire any right, title and interest in Your Content other than the rights you grant to us under the Contract. During the term of the Contract, You hereby grants US and Our's Affiliates a non-exclusive, perpetual, irrevocable, transferrable, sublicensable, royalty-free, fully-paid, worldwide right and license, as of the Effective Date, to all Your Content and any other data derived from the Service, for our and our Affiliates to use and otherwise exploit in any manner it sees fit.
7.2. Accelleron Content. As between the parties, all right, title and interest, including all Intellectual Property Rights, in and to the Accelleron Content are and remain exclusively with us, our Affiliates or our licensors. You have no rights in and to the Accelleron Content, other than those expressly granted pursuant to the Contract.
7.3. Our use of Your Content. We, our Affiliates and our subcontractors have the right to collect, store, aggregate, analyze or otherwise use Your Content for (i) providing and maintaining the Services to you and your Affiliates; (ii) preventing, detecting and repairing problems related to the security and/or the operation of the Portal, the Services (iii) improving and developing existing services, technologies, products and/or software and developing new services, technologies, products and/ or software, and all improvements and developments (including all resulting Intellectual Property Rights) are exclusively owned by us. In addition, we have the right to use Your Content for benchmarking purposes if and to the extent it is anonymized or non-confidential.
7.4. Feedback. During the term of a Contract, you may provide feedback or suggestions related to the Services, the Portal to us. We and our Affiliates are entitled to use such feedback and suggestions, even if they should be marked confidential (see Section 15.1), without restrictions and any compensation to you.
8. Intellectual property infringement
8.1. Defense and indemnity. If any third party makes a claim against you that the Services infringe a third party’s copyrights, patents or trademarks (a "Claim"), we will defend you against such
Claim and pay the amounts finally awarded by a court against you or included in a settlement approved by us, provided that you will (i) give written notice of the Claim to us without undue delay, specifying the nature of the Claim in reasonable detail; (ii) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of us; and (iii) allow us to control and reasonably cooperate with us in the defense and settlement of the Claim.
8.2. Effect of Claim. If a Claim is made or, in our reasonable belief, is likely to be asserted, we may, at no cost to you: (i) procure for you the right to continue to take the benefit of any Services, that are affected by the Claim in accordance with the terms of the Contract; or (ii) reperform the applicable Services so that it becomes non-infringing (provided that the reperformed Services, provide substantially the same performance and functionality and do not adversely affect the use of the Services); or (iii) if the remedies set forth in Sections 8.2(i) and 8.2(ii) are not commercially feasible, as determined by us in our sole discretion, terminate the applicable Order, in whole or in part, and pay you a pro rata refund of the fees paid by you for the infringing Service.
8.3. Exceptions. We have no liability or obligation related to any Claim if and to the extent the Claim arises out of or relating to (i) the use of Your Content in the provision of the Services or otherwise in connection with the Contract; (ii) a modification of the Services created by or at the direction of you or a third party; (iii) use of the Services other than in accordance with the terms of the Contract; (iv) use of the Services in combination with any other hardware, software or other materials, where absent such combination, the affected Service or Software would not be the subject of a Claim; or(vi) any Third-Party Software.
8.4. Sole and exclusive remedy. This Section 8 states the sole, exclusive and entire liability of us to you and your sole and exclusive remedy with respect to any claim or allegation of infringement or misappropriation of any third party Intellectual Property Right
9. Warranty and indemnity by you
9.1. Warranty. You represent and warrant that the use by us of Your Content or your grant of any license or right under the Contract, will not infringe the Intellectual Property Rights or other rights of any person.
9.2. Indemnity. You will indemnify and hold us harmless from and against all costs, claims, demands, liabilities, expenses, damages or losses arising out of or in connection with any alleged or actual (i) infringement of any third party's Intellectual Property Rights by you; (ii) violation of any third party’s rights related to Your Content or its use by us, our Affiliates and/or our subcontractors in accordance with the Contract; (iii) violation of any other rights of a third party related to your breach of the Contract; and (iv) breach of Laws by your use of the Software and/or Services.
10. DISCLAIMER:
10.1. Except as expressly set out in this Agreement, we expressly disclaim, to the fullest extent permitted by applicable law, any guarantees, warranties, terms, conditions, undertakings and representations, express or implied, regarding the Services, including in regard to accuracy, performance and fitness of use. Further, we do not warrant that use of the Services will be uninterrupted or error-free.
10.2. The Solutions and Services may rely on and/or output data from a variety of data sources. You acknowledge and accepts that such data may not reflect the latest real-time situations. Further, you accept that we are not liable for the quality of data provided by you or third parties under your’ s control, and we cannot be held liable for the output of the reports or Services based on such data.
10.3. We do not in any way control your's vessels or its business and does not take or accept any liability for the safety of any crew or any vessel including damage to cargo, personal death, and bodily injury. You acknowledge and accepts that any decision concerning its vessels, its business, or otherwise is taken solely by you and that the Services, and their output are provided for reference only and shall in no way substitute sound judgment.
11. Limitation of liability:
11.1. Limited liability. our total aggregate liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with a Contract shall be limited to the 100% of the total charges paid by you against the respective Order.
11.2. Exclusions. We shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with a Contract, and even if we have been advised of the possibility of such damages, for (i) loss of profits, sales or business, agreements or contracts, anticipated savings, revenue, or damage to goodwill; (ii) business interruption, loss of production, loss of use or loss or corruption of data; (iii) costs of substitute goods, materials or services; or (iv) any indirect, consequential, incidental, special, punitive damages or exemplary loss
11.3. Scope of limitations and exclusions. The limitation and exclusions to our liability in this Sections do not apply (i) to damage caused by willful intent or gross negligence of Accelleron's representative or vicarious agents; (ii) for any liability which cannot be limited or excluded by applicable Laws.
11.4. The limitations and exclusions of liability also apply to the benefit of our Affiliates, suppliers, licensors, subcontractors as well as our and their directors, officers, employees and representatives. You may not assert any claim for breach or non-performance under a Contract against us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, unless you have given us written notice of the claim within 1 (one) year after you first knew or reasonably should have known of the facts giving rise to such claim.
12. Suspension:
12.1. We may suspend the Services in whole or in part if we determine that your use of the Services
(i) poses a security risk to the Services, and/or the Portal and/or any third party; (ii) may adversely impact the performance of the Services, and/or the Portal; (iii) is in violation of the Laws or poses a risk that we are or will be in violation of the Laws; (iv) may subject us or any third party to liability. In addition, we may suspend the Services under the circumstances specified in the Acceptable Use Policy and if you fail to pay any amount due under the Contract on the due date for payment. We will suspend the Services only to the extent reasonably necessary. Unless we believe an immediate suspension is required and appropriate, we will use commercially reasonable efforts to provide reasonable notice before suspending a Service.
13. Termination:
13.1. Termination for convenience. TNM may terminate a Contract for convenience by giving a reasonable notice in writing
13.2. Termination for cause by each party. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party is in material breach of the Contract and, where the breach is by its nature curable, a breach is not cured within 30 (thirty) days, or such other period which is reasonably required considering the circumstances, following notification of the breach bythe non-breaching party
13.3. Termination for cause by us. Without limiting our other rights or remedies, we may also terminate the Contract (in whole or in part) with immediate effect by giving written notice to you if (i) you fail to pay any amount due under the Contract on the due date for payment and remain in default not less than 14 (fourteen) days after being notified to make such payment;
(ii) there is a change in the Laws in one or more countries applicable to the performance of the Service that would render the continued performance of the Service illegal, impractical or would otherwise have a material impact (including a cost impact) on the provision of the Services; (iii) a suspension of the Services as per Section 12.1 exceeds a period of 14 (four- teen) days; or (iv) you are in breach of the Acceptable Use Policy or the license terms.
13.4. Effect of termination or expiration. Upon termination or expiration of the Contract for any reason: (i) you will immediately cease using the Services (ii) we may disconnect your access to the Services and the Portal may delete Your Content on or after the effective date of termination or expiration; (iii) with respect of the Services supplied but for which no invoice has been submitted, we will submit an invoice which will be payable by you in accordance with Section 4; and (iv) the accrued rights, remedies, obligations and liabilities of the parties as at termination or expiration shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiration. The Order may set forth your responsibilities, applicable means and timeframes for retrieving Your Content upon or after termination or expiration of the Contract.
14. Export control or sanctions
14.1. Export control and sanctions. You will not export, directly or indirectly, any technical data acquired from us under the Contract in breach of any applicable export control or sanctions laws, including, if applicable, those of the United States, and you will obtain any export licenses or other government approvals required for such exports. In addition, if requested by us, you will provide us with any reasonable assistance that is necessary for us to perform any activity required by government authorities, or otherwise to comply with export control or sanctions laws.
14.2. Third parties. You will contractually oblige any third party to whom you might disclose, transfer or export data that you procure pursuant to a Contract to comply with export control and sanctions requirements equivalent to those in Section 14.1.
15. Confidentiality:
15.1. Confidentiality. For 5 (five) years after the initial disclosure the party receiving confidential information (the “Recipient”) agrees to apply reasonable safeguards against the unauthorized disclosure of the other party`s (the “Discloser”) confidential information in accordance with good industry practice, or in the same manner and to the same degree that it protects its own confidential and proprietary information – whichever standard is higher to avoid dis- closure to any third party on any technical or commercial knowhow, specifications, inventions, processes, code, product plans, marketing plans or initiatives or any other information or data which are designated at the time of disclosure to the Recipient as confidential or are recognizable as being of a confidential nature and have been disclosed to Recipient by the Discloser or its agent, except as permitted under these GTC.
15.2. Exceptions. Confidential information does not include any particular information that the Recipient can reasonably demonstrate (i) was in the possession of, or was rightfully known by, the Recipient without an obligation to maintain its confidentiality prior to receipt from the Discloser; (ii) was or has become generally available to the public other than as a result of disclosure by the Recipient or its agents; or (iii) was independently developed by the Recipient without use of or reference to any confidential information of the Discloser.
15.3. Permitted disclosure. The Recipient may use the Discloser's confidential information for the purpose of performing the Contract or as otherwise permitted by the Contract and disclose it (i) to such of its and its Affiliates employees, agents, professional advisers or subcontractors as need to know the same in connection with the Contract and provided the Recipient takes reasonable measures to ensure that such employees, agents or subcontractors comply with the section 14; and (ii) as may be required by Laws, a court of competent jurisdiction or any governmental or regulatory authority, provided that the Recipient takes reasonable efforts to notify the Discloser (where legally permissible to do so) reasonably in advance to enable the Discloser a reasonable opportunity to obtain a protective order.
16. Governing Law and Jurisdiction :
16.1. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the substantive laws of Switzerland excluding both its conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980).
16.2. Jurisdiction. Any dispute, controversy or claim arising out of, or in relation to, the Contract, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the notice of arbitration is submitted in accordance with these rules. The number of arbitrators shall be three. The seat of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English.
17. General provisions:
17.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control, including:
(i) acts of God, flood, fire, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, cyber-attacks, riots, war, threat of or preparation for war, armed conflict, sanctions or embargos; (iv) Laws or action taken by a government or public authority;
(v) systemic electrical, telecommunications or other utility failures; and (vi) any labor or trade dispute, strikes, industrial action or lockouts;
17.2. Assignment. We may assign or otherwise transfer the Contract or any of our rights and obligations under the Contract to an Affiliate or successor-in-interest. You shall not, without our prior written consent, assign or otherwise transfer any or all of your rights or obligations under the Contract
17.3. Subcontracting. We are permitted to appoint and use Affiliates and other third parties to perform our obligations or any portion thereof without prior notification to or consent of the Customer.
17.4. Entire agreement. The Contract constitutes the entire agreement between the parties in relation to its subject matter. It replaces and supersedes all prior agreements, draft agreements, statements, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written, in relation to that subject matter. The parties agree that the Customer's standard or purchase terms and conditions shall not apply.
17.5. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties. Notwithstanding the foregoing, we may modify these GTC, STC, the Data Privacy Policy and/or code of conduct from time to time. Any such modification will be subject to notification to you and will be effective as stated in the notification. Should a modification by us become effective during the term of a Contract and have a material adverse effect on your rights or obligations under the Contract, you may terminate the affected Contract within 30 (thirty) days following notification with 30 (thirty) days written notice and we will refund you any prepaid amounts for the respective Service on a pro-rata basis for the remainder of the Service term. Such refund is your sole and exclusive remedy. By continuing to use the Services and/or the Software after the effective date of modification, you agree to be bound by the modified terms.
17.6. No waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. Except as otherwise expressly stated in the Contract, a delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy
17.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted but not affect the validity and enforceability of the rest of the Contract.
17.8. Code of conduct and anti-bribery law.
The Parties shall ensure that their respective employees, officers, directors, and any Affiliates or third parties engaged in any manner in relation to the Agreement shall undertake to comply with all Anti Bribery & Corruption Laws and the requirements set out in this clause. The Parties confirm that they have not violated, shall not violate, and shall not cause the other party to violate, any Anti Bribery & Corruption Laws in connection with the Agreement and these GTC.
Customer’s violation of any of the obligations contained in this clause may be considered by Accelleron to be a material breach of the Agreement and shall entitle Accelleron to terminate the Agreement or cancel the order with immediate effect and without prejudice to any further right or remedies on the part of Accelleron under the Agreement or applicable law. The Customer shall indemnify for all liabilities, damages, costs or expenses incurred as a result of any such violation of the above mentioned obligations and termination of the Agreement.
The Customer notes that Accelleron has published its Code of Conduct, available at www.accelleron-industries.com/integrity, and that it is Accelleron’s policy to do business with companies adhering to similar levels of ethical business conduct. The Customer notes that Accelleron is maintaining an anonymous platform for the reporting of suspected unethical behavior: https://accelleron.speakup.report/en-GB/integrity/home.
17.9. Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be (i) delivered by hand or courier or by pre-paid registered first-class post or special delivery to the address specified in the Order; or (ii) sent by email to the email address specified in the Order. We may in addition provide notices by email or other electronic notification forms available in the used systems to the address then associated to your account on the Portal.
17.10. Third party beneficiaries. No one other than a party to the Contract shall be a beneficiary of the Contract or shall have any right to enforce any of its terms, unless specified in the Contract
17.11. Independent contractors. Each party is an independent contractor, nothing contained in these GTC or the Contract shall form a joint-venture, partnership or agency, and neither party has the authority to bind the other party.
Definitions and interpretation
Definitions
"Accelleron Content" means the Services, deliverables provided as part of the Services, the Portal as well as Accelleron Device Data (including all tools, software, hardware, materials, data, content, application program interfaces provided by us or our Affiliates as part of or in relation to the Services) as well as all derivatives and modifications of and improvements to all the foregoing, or other Accelleron intellectual property;
"Affiliate" means any entity, whether incorporated or not, which presently or in the future, directly or indirectly controls, is controlled by, or is under common control with a party, by virtue of a controlling interest of 50% or more of the voting rights or the capital, or by means of controlling the constitution of the board and the voting at board meetings;
“Annex” means an Annex to these GTC which applies only to certain services provided by Accelleron, as identified in an Order and/or the Annex itself
"Data Privacy Policy" means the data privacy policy, available at https://Accelleron- industries.com/privacy/corporate-rules, as may be updated by us from time to time;
“Good Industry Practice” means the exercise of the degree of skill, diligence, prudence, efficiency, foresight and timeliness that would be expected from a proper qualified and competent person or organization within the relevant industry or business sector
"Intellectual Property Rights" means (a) inventions, patents, utility models, copyrights, moral rights, mask work rights, database rights and rights in trademarks, trade names, designs, know-how, and invention disclosures (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
"Laws" means any applicable legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency, authority, or other relevant body, as amended or reenacted;
"Order" means a document in electronic or physical form, an online form or other online instrument provided by us for ordering or procuring Services, Software and/or Hardware Devices, which refers to these GTC;
"Personal Data" means any data or information relating to an identified or identifiable natural person and, where required by mandatory applicable Law, any data or information of an identified or identifiable legal entity;
"Portal" means an online portal, accessible for you, at the web address notified to you by us at the beginning of the Services (or such other web address as may be notified to you by us from time to time);
"Services" means the advisory services to be provided or to be made available by us to you as described or referred to in an Order;
"User" means an individual who is legitimately authorized to access or receive the Services, use the Software and/or access the Portal through your account.
"Your Content" means any information, data and material that we measure or that is provided by or on behalf of you through or in connection with our provision or your use of the Services, including, for the avoidance of doubt, third party information, data and material that is provided by or on behalf of you; Data shall also include any Intellectual Property Rights incorporated or embedded therein.
Interpretation
Any phrase introduced by the terms "e.g.", "including", "include", "in particular", "such as", “for example” or any similar expression, shall be construed as illustrative and shall not introduce an exhaustive list of phrases nor limit the sense of the words preceding those terms.