All business is conducted under these terms of business dated Oct 2018
1. About Dryad
Dryad International Limited t/a Dyad Global (“Dryad”) is a limited company registered in England and Wales under company number 11272311, whose registered office is at 71-75 Shelton Street London WC2H 9JQ
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means the written agreement between Dryad and the Client (including the Schedule and any documents directly referred to therein for the purpose of ascertaining the rights and obligations of the Parties) which incorporates and is subject to these Terms and Conditions
means a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business (other than solely for trading and settlement in Euros) in England;
means the individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) to which Dryad is to provide the Services, and whose details are set out in the Schedule;
means the commencement date for the provision of the Services following any Trial Period;
Means the confidentiality agreement entered into between Dryad and the Client on the date specified in the Schedule;
means the fees payable by the Client under Clause 8 in accordance with the Terms of Payment;
“Intellectual Property Rights
means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world, including the right to sue for and recover damages for past infringements;
“Minimum Service Period”
means the period of 12 months or such other minimum service period as specified in the Schedule;
means the schedule attached to these Terms and Conditions;
means the services to be provided by Dryad to the Client as set out in the Schedule or any variation requested by the Client and accepted by Dryad in accordance with the provisions of these Terms and Conditions;
“Terms of Payment”
means the terms of payment of Fees as set out in the Schedule;
means the period (if any) specified in the Schedule during which the charges or notice period for the Services (as applicable) will differ from standard charges and/or notice periods as described in standard description
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.21 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means
2.22 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time
2.23 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.24 a Schedule is a schedule to these Terms and Conditions; and
2.25 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.26 a “Party” or the “Parties” refer to the parties to the Agreement
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3.1 These Terms and Conditions shall apply to the provision of Services by Dryad to the Client.
3.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), these Terms and Conditions shall prevail unless expressly otherwise agreed by Dryad in writing.
3.3 Any other terms, conditions or provisions whether proposed by the Client orally or in writing shall be of no effect and the provision of Services by Dryad to the Client shall not constitute acceptance of such other terms, conditions or provisions.
3.4 Unless specifically agreed and confirmed in writing and signed by a Director of Dryad, information and advice given orally or contained on Dryad’s website, publicity material, advertisements and catalogues and in correspondence between Dryad and the Client before the date of the Agreement is given gratuitously and without responsibility on the part of Dryad and shall not form part of the Agreement. In entering into the Agreement the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.5 Unless stated in the Agreement or expressly agreed in writing by a Director of Dryad, no term, condition, warranty or representation (whether express or implied by statute, law, custom or usage) as to the nature, quality or fitness of the Services of their conformity with any description or sample if given by Dryad, or shall form part of any contract between Dryad and the Client.
3.6 The terms of the Agreement shall override and supersede any previous negotiations, agreement or arrangement between Dryad and the Client in relation to the provision of Services.
3.7 Unless the Company otherwise agrees in writing these Terms and Conditions shall apply to all future agreements for the provision of services by Dryad to the Client.
4. Trial Period
4.1 During the Trial Period (if any) Dryad shall provide the Services to the Client under the terms as described in the schedule which may be an amendment to the standard notice and pricing structures published.
4.2 Either party may terminate the Agreement at any time during the Trial Period (if any) by giving written notice to the other party.
4.3 If no such notice is given all provisions of this Agreement shall continue in full force and effect from the Commencement Date.
5.1 With effect from the Commencement Date Dryad shall, in consideration of the Fees being paid in accordance with the Terms of Payment, provide the Services to the Client.
5.2 Dryad will use reasonable care and skill to perform the Services.
5.3 Dryad shall use all reasonable endeavours to complete its obligations under the Agreement and shall use reasonable endeavours to complete such obligations in accordance with any reasonable timeframes requested by the Client.
Subject to the provisions of Clauses 12 and 14:
6.1 the minimum duration of the Agreement shall be the Minimum Service Period from and including the Commencement Date; and
6.2 either party are to give the other party notice in writing of its intention to renew or cancel the Agreement at least two (2) months before expiry of the Service Period; and
6.3 If notice is correctly and validly given pursuant to clause 6.2 the Agreement shall terminate at the end of the Service Period.
7 Client’s Obligations
In order to enable Dryad to perform its obligations the Client shall:
7.11 where required by Dryad, fully and accurately complete Dryad’s client information form;
7.12 where required by Dryad, ensure that its employees
a. comply with any relevant and reasonable vessel policies and procedures that are in place from time to time and of which the Client and the employees have been made aware either before the embarkation date or at the time of boarding the vessel;
b. know and fully understand the extent and limitations of the Services;
c. report their vessel location daily to Dryad’s ops room;
7.13 co-operate with Dryad and comply with its reasonable requirements
7.14 urnish Dryad promptly upon request with such information as Dryad may reasonably require for the provision of the Services;
7.15 take all reasonable steps to ensure the accuracy and validity of all information provided to Dryad, and promptly inform Dryad of any change to details or information provided;
7.16 at its own cost obtain all permissions, licences and consents which may be required for it to use the Services prior to the commencement of the Trial Period (if any), or if there is no Trial Period prior to the Commencement Date
8.1 The Client agrees to pay the Fees in accordance with the Terms of Payment
8.2 The Client will pay Dryad for any variation, or addition, to the services detailed in the Schedule in accordance with sub-clause 13.1, or as suggested by Dryad to ensure an effective service is delivered provided this alteration and price is agreed with the Client in advance.
8.3 All sums payable by either Party pursuant to the Agreement are exclusive of any value added or other tax (except corporation tax or other taxes on profit), for which that Party shall be additionally liable
9.1 All payments required to be made by the Client to Dryad pursuant to the Agreement shall be made within 10 days of the date of the relevant invoice in Pounds Sterling in cleared funds without any set-off, withholding or deduction (except such amount (if any) of tax as the Client is required to deduct or withhold by law) to the bank account specified on the invoice.
9.2 The time of payment shall be of the essence. If the Client fails to make any payment on the due date then Dryad shall, without prejudice to any right which Dryad may have pursuant to any statutory provision in force from time to time, have the right to:
9.21 charge the Client interest on any outstanding late payments in accordance with the late payment of commercial debts (interest) acts; and
9.22should payment not be received within 7 days following the due date, suspend provision of the Services until all outstanding sums have been paid in full
As part of the Services Dryad may provide marketing material to the Client for their use, but such marketing material must only be used by the Client strictly in accordance with the written guidelines provided by Dryad for that purpose.
11. Outage and Faults
11.1 From time to time Dryad may need to interrupt the provision of the Services (an “Outage”) for the purposes of servicing, maintaining, repairing or upgrading its hardware or software, or for any other reason
11.2 In circumstances where the Outage is planned by Dryad (or Dryad is otherwise aware of it) in advance, the client shall be given notice of the outage at the earliest possible opportunity but, wherever reasonably practicable, not less than 12 hours before the outage. Dryad shall send to the Client the notice specifying:
11.2.1 the date, time and estimated duration of the Outage;
11.2.2 whether the Services will be wholly or partially affected; and
11.2.3 how Dryad expects the Services to be affected by the Outage
11.3 The Client shall inform Dryad as soon as practicable when it becomes aware of any Outage or other fault affecting the Services by emailing or telephoning Dryad, and shall provide the following:
11.3.1 the Client’s full name and the name of the affected vessel;
11.3.2 any details requested for clearance in accordance with security procedures;
11.3.3 details of the problem, including the date and time when it first occurred; and
11.3.4 the name and contact details of the person to be contacted with reports on the status of the fault or Outage.
11.4 Dryad shall use its best endeavours to prevent outages that are reasonably foreseeable, and within Dryad’s control. If an outage occurs, to the extent that the fault or outage notified to Dryad under sub-Clause 11.3 is within Dryad’s control, eliminate the fault or outage and restore the Services as soon as possible.
Dryad and the Client have entered into the Confidentiality Agreement and the provisions of that agreement shall apply as if they have been repeated in full (mutatis mutandis) here and shall survive termination of this Agreement howsoever it occurs.
12 Variation and Amendments
12.1 The Client may at any time during the Agreement request reasonable alterations to the Services (a “Variation”). Upon receipt of the Client’s request for a Variation, Dryad shall, within 14 days or such other period as may be agreed, state in writing the effect such Variation will have on the Services, Fees and any other terms of the Agreement
12.2 Dryad shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature and quality of the Services, and Dryad shall notify the Client in any such event. Dryad shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances. If in the Client’s reasonable opinion Dryad’s changes render the Services unsuitable and the changes materially affect the nature and the quality of the Services, the Client may terminate the Agreement in accordance with Clause 14.1.2.
12.3 Dryad shall have the right to change any part of this Agreement (including, without limitation, the Fees) to take effect on the next Renewal Date (as defined in clause 6.2) subject to giving the Client two (2) months’ notice; the provisions of this Clause 13.3 shall not apply to the circumstances contemplated in Clauses 13.1 and 13.
13.1 Either Party may terminate the Agreement by giving written notice to the other Party if:
13.1.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 90 days of the due date for payment
13.1.2 the other Party commits any other material breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 7 days after being given written notice giving full particulars of the breach and requiring it to be remedied
13.1.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
13.1.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
13.1.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
13.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
13.1.7 the other Party ceases, or threatens to cease, to carry on business.
13.2 For the purposes of sub-Clause 14.1.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
13.3 In the event of termination under sub-Clause 14.1 Dryad shall retain any sums already paid to it by the Client without prejudice to any other rights Dryad and/or the Client may have whether at law or otherwise.
14 Liability and Indemnity
14.1 It is Dryad’s standard practice to have a disclaimer on all reports and documentation it issues (whether electronically or otherwise), but in the absence of such disclaimer the Client agrees that the following disclaimer shall apply to every report or document as if it had appeared in full on such report or document
“Advice given and recommendations made do not constitute a warranty of future results or an assurance against risk. Recommendations are based on information provided by you and other information available at the time of writing/publishing. No express or implied warranty is given in respect of any judgment made or to any changes or unforeseen escalation of any factors affecting any such judgment.
Reports are for your benefit only and may not be disclosed to any third parties without our prior written consent. You agree to indemnify us against any claim and any resulting damages that may be caused by any unauthorised disclosure of such documents.”
The Client shall be entitled, at no extra cost, charge or payment to use the reports, including disclose them to third parties in the ordinary course of maritime business subject to Dryad’s consent which shall not be reasonably withheld.
14.2 Dryad shall have in place one or more insurance policies to cover the liabilities that may arise from Dryad, or Dryad’s employees, performing the Services and such insurance policies shall remain in force during the period this Agreement is in force.
14.3 Except in respect of death of personal injury caused by Dryad’s negligence, Dryad will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by Dryad’s servants or agents or otherwise) in connection with the performance of its obligations under the Agreement or with the use by the Client of the Services supplied
14.4 Dryad shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Dryad’s obligations if the delay or failure was due to any cause not reasonably foreseeable by Dryad.
14.5 Dryad provides no warranty that any result or objective can be or will be achieved or attained at all or by a given completion date or any other date, whether stated in this Agreement or elsewhere
14.6 Except in the case of death or personal injury caused by Dryad’s negligence, the liability of Dryad under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed US$1,000,000.
14.7Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature or for any economic loss or other loss of turnover, profits, business or goodwill (in each case whether incurred directly or indirectly).
14.8 This clause 15 shall survive termination of the Agreement
15 Data Protection
15.1 The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Dryad in connection with the Services.
16 Force Majeure
Neither the Client nor Dryad shall be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of, and not reasonably foreseeable to, the Party in question.
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange
18.1 No waiver by either Party of any breach of the Agreement by either Party shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of the Agreement shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which the waiver is given.
18.2 No failure or delay on the part of any Party in exercising any right, power or privilege under the Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.
The Parties agree that, in the event that one or more of the provisions of the Agreement are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable
20 Intellectual Property Rights
As between Dryad and the Client, all Intellectual Property Rights and all other rights in the products of or in connection with the Services shall be owned by Dryad. Dryad reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such Intellectual Property Rights Notices
20.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
20.2 Notices shall be deemed to have been duly given:
20.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated.
20.3 Service of any document for the purposes of any legal proceedings concerning or arising out of the Agreement shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time. Dryad’s nominated address is 71-75 Shelton Street London WC2H 9JQ.
21.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.1 When delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
21.2.2 When sent, if transmitted by fax or email and a successful transmission report or return receipt is generated.
22 Law and Jurisdiction
22.1 The Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
22.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
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