1 January 2015
CHAPTER I – PUBLIC AREA
1.1 Use of ESI Website
Except as set forth below, IAPH authorizes you to use the ESI Website only for your own personal, non-commercial purposes. Use of the ESI Website for any public or commercial purpose (including, without limitation, on another site or through a networked computer environment) is strictly prohibited. If you make copies of any of the Materials, you must retain on any such copies all copyright and other proprietary notices contained in the original Materials. You may not modify, publicly display, publicly perform, or distribute the Materials. The ESI Website is protected under Dutch (“Auteurswet 1912”) and international copyright laws. Any unauthorized use of the ESI Website may violate copyright, trademark, and other laws.
1.2 Prohibited use of ESI Website
You agree not to use the ESI Website (including, without limitation, any Materials or Services you may obtain through your use of the ESI Website): a) in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”); b) to stalk, harass, or harm another individual; c) to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; or d) to interfere with or disrupt the ESI Website or servers or networks connected to the ESI Website. You further agree not to use any data mining, robots, or similar data gathering or extraction methods in connection with the ESI Website; or attempt to gain unauthorized access to any portion of the ESI Website or any other accounts, computer systems, or networks connected to the ESI Website, whether through hacking, password mining, or any other means.
You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the ESI Website and for paying all charges related thereto.
2 Intellectual Property Rights
IAPH and any other product or service name or slogan or logo contained in the ESI Website are trademarks of IAPH and may not be copied, imitated, or used, in whole or in part, without the prior written permission of IAPH. Ownership of all such trademarks and the goodwill associated therewith remains with IAPH. You may not use any metatags or any other "hidden text" utilizing any name, trademark, or product or service name of IAPH without IAPH’s prior written permission. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) is the service mark, trademark, and/or trade dress of IAPH and may not be copied, imitated, or used (in whole or in part) without IAPH’s prior written permission.
3 Disclaimer of warranties
The ESI Website is provided "as is" and “with all faults” and the entire risk as to the quality and performance of the ESI Website is with you. Should the materials or services prove defective, you, and not IAPH, assume the entire cost of all necessary servicing and repair. IAPH expressly disclaims all warranties of any kind, whether express, implied, or statutory, with respect to the ESI Website (including, but not limited to, any implied or statutory warranties of merchantability, fitness for a particular use or purpose, title, and non-infringement of intellectual property rights). Without limiting the generality of the foregoing, IAPH makes no warranty that the ESI Website will meet your requirements or that the ESI Website will be uninterrupted, timely, secure, or error free or that defects in the ESI Website will be corrected. IAPH makes no warranty as to the results that may be obtained from the use of the ESI Website or as to the accuracy or reliability of any information obtained through the ESI Website. No advice or information, whether oral or written, obtained by you through the ESI Website or from IAPH, its parents, subsidiaries, or other affiliated companies, or its or their suppliers (or the respective officers, directors, employees, or agents of any such entities) shall create any warranty. IAPH disclaims all equitable indemnities.
4 Limitation of liability
In no event will any of IAPH be liable for a) any direct damages whatsoever including, without limitation, those resulting from loss of revenues, lost profits, loss of goodwill, loss of use, business interruption, or other intangible losses and b) any indirect, special, consequential, punitive, or exemplary damages or arising out of or in connection with the ESI Website (including, without limitation, use, inability to use, or the results of use of the ESI Website), whether such damages are based on warranty, contract, tort, statute, or any other legal theory and even if IAPH party has been advised (or should have known) of the possibility of such damages.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent that IAPH may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of IAPH’s liability shall be the minimum permitted under such applicable law.
You agree to indemnify, defend, and hold harmless IAPH from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your (or anyone using your account’s) violation of these Terms. IAPH reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with IAPH’s defense of such claim.
IAPH may terminate, suspend, or modify your registration with, or access to, all or part of the ESI Website, without notice, at any time and for any reason. You may discontinue your participation in and access to the ESI Website at any time. If you breach any of these Terms, your authorization to use the ESI Website automatically terminates and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
7 External links
Links on the ESI Website to third-party websites are provided solely as a convenience to you. If you use these links, you will leave the ESI Website. IAPH is not obligated to review such third-party websites, does not control such third-party websites, and is not responsible for any such third-party websites (or the products, services, or content available through the same). Thus, IAPH does not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the IAPH Network, you do this entirely at your own risk.
IAPH may, in its sole and absolute discretion, change these Terms from time to time. IAPH will post notice of such changes on the ESI Website. If you object to any such changes, your sole recourse shall be to cease using the ESI Website. Continued use of the ESI Website following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Certain provisions of these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the ESI Website and, in such circumstances, the expressly-designated legal notice or term shall be deemed to be incorporated into these Terms and to supersede the provision(s) of these Terms that are designated as being superseded.
The failure of IAPH to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
These Terms and the relationship between you and IAPH shall be governed by the laws of the Netherlands.
All lawsuits arising from or relating to these Terms or your use of the ESI Website shall be brought in the competent Dutch courts, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.
8.5 Entire agreement
These Terms constitute the entire and exclusive and final statement of the agreement between you and IAPH with respect to the subject matter hereof, superseding any prior agreements or negotiations between you and IAPH with respect to such subject matter.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of IAPH and you as effect.
CHAPTER II - NON-PUBLIC AREA
You may gain access to non-public areas of the ESI Website only if you are a person who has been provided by IAPH with a) a login identification number(s) ("UserID") and b) a personal identification number(s), password(s), symbol(s) or code(s) ("Password") and as long as such UserID and Password remain valid (such a person is hereinafter referred to as a "Member"). IAPH may at any time in its sole and absolute discretion forthwith invalidate the UserID and/or Password without assigning any reason therefore, without prior notice and shall not be liable or responsible for any loss or damage suffered by or caused by you, or arising out of or in connection with or by reason of such invalidation. You are solely responsible for retaining the confidentiality of your UserID and Password and shall not at any time disclose your UserID or Password to any other party. All communications transmitted to IAPH using your UserID and/or Password shall be deemed to be use or access of this Website by you or with your authority. If you believe that the security of your UserID and/or Password has been compromised, you shall forthwith notify IAPH and obtain a new UserID and/or Password. You will remain liable for any unauthorized use of your UserID and/or Password until such notification is received.
When you register as a Member, IAPH may collect certain personal information about you. IAPH’s use of such information is governed by the provisions of the IAPH Privacy Statement for the ESI Website.
The funds needed for the ESI database are divided into two main groups:
|1.||fees for the administrative support, maintenance, subscription, licensing fees, computer rental etc. which are charged on a regular basis;|
|2.||costs connected with set up, changes, additions, renewals, improvements, extensions, editing, etc. of the ESI Website which would not be required on a regular basis.|
The moneys required for item 1. which are of a recurring nature, are supplied by IAPH; the Members that are designated as Data User (see section 10.1), generally known as Incentive Providers (IP’s), are responsible to provide the funds for item 2.
The costs involved in item 2. will only be charged if the Incentive Providers (IP’s) have agreed upon changes, additions, renewals etc. of the ESI website resulting in additional expenditures. They will be invoiced as an advance, allowing for budgets to be aligned. These advances will only be charged to Members that were registered in or before the invoicing year minus two. If two months after invoicing a Member, no remittance has been received from that Member, the public showing of the Member in the list of IP’s will be discontinued until such time that payment has been received.
The contribution requested from a particular Incentive Provider is based on “tonnage handled” converted into contribution points in accordance with the following table. In this respect "tonnage handled" is the cargo tonnage in metric tons which passed in and out of the participant’s port via the sea way only, in the invoicing year minus two i.e. in 2016 the tonnage which is used to calculate the contribution is the tonnage handled over the year 2014. If no cargo is handled the contribution point is set at 1.
|Tonnage handled (tons x 106)||Contribution Point(s)|
|Less than 10||1|
|10 or more but less than 25||2|
|25 or more but less than 50||4|
|50 or more but less than 75||6|
|75 or more but less than 100||8|
|100 or more||10|
Example: Assume the meeting of IP’s has agreed upon changes that require an amount of 10 000 and assume there are 6 participants A thru F with contribution points as follows, 10, 8, 7, 5, 4 and 1 respectively. The amount of 10 0000 is divided by the sum of the contribution points 35, which will give the amount due for 1 contribution point: 285.71.
Participants A thru F are required to contribute 2 857.14, 2285.71, 2 000.00, 1428.57, 1142.86 and 285.71 respectively.
The ESI Website processes information concerning ships and vessels, such as information regarding the engines of a ship or vessel and information regarding bunkering, as referred to in the appropriate parts of the ESI Website (“Ship Data”). When you register as a Member you will also be asked whether you will be providing Ship Data, (“Data Provider”) or will be using Ship Data (“Data User”). Data Providers would normally be ship owners, managers or operators of a ship or vessel, Data Users would normally be ports, harbors and other organizations, interested in the environmental performance of a ship. Data Users may, at their sole discretion, grant certain benefits based on Ship Data and related information that is published on the ESI Website; Data Users agree that this information is used for benefit purposes only. Any grant of a benefit is subject to terms and conditions as published by the Data User.
You agree to provide accurate and complete Ship Data (if you are a Data Provider) and other information (if you are a Data Provider or Data User) and, for as long as you continue to be a Member, to update such Ship Data and other information to keep it true, accurate, current, and complete.
Data provided by Data Providers are only used for the purpose of establishing the ESI Score. These data, except for those shown in the Public section of the ESI website, will be kept confidential and will not be made available to third parties except a) for the purpose of use by persons that have Audit Rights when auditing ships data in which case the data may only be used for the verification of the correctness of data provided and /or b) where disclosure is required by law or regulation of a competent governmental or regulatory authority.
IAPH has the right to audit Ship Data provided by Data Providers (“Audit Rights”). The Audit Rights are limited to the Ship Data and audits may be in the form of administrative checks of data provided and/or on board ship or in office inspections of data provided including documents pertaining thereto.
If you are a Data User you may request IAPH to grant you Audit Rights. IAPH may grant you Audit Rights at its sole discretion. Until you have been granted Audit Rights you agree not to audit any Ship Data provided by Data Providers.
If you are a Data Provider, you agree to give IAPH and Data Users that have been granted Audit Rights access to information and reasonable assistance as may be necessary to audit the Ship Data provided by you. Such audit shall be conducted at the expense of IAPH/Data User.
If a) an audit cannot be conducted through non cooperation by the Data Provider or b) it is determined that the Ship Data is not completely accurate or complete, IAPH has the right to remove the relevant Ship Data from the ESI Website and refrain from making such data available to Data Users; where appropriate Data Users will be consulted. The Data Provider concerned will be notified of such decision prior to removal.
10.6 IAPH’s decisions
Any decision on the removal of Ship Data from the ESI Website will be made at IAPH’s sole discretion. It is expressly agreed that clause 4 will also apply for any cost and damage caused by such decisions.
11 Dispute resolution
If any dispute arises between a Data Provider and a Data User related to the accuracy or completeness of certain Ship Data then parties will attempt to resolve the dispute in accordance with this clause 11 before resorting to a the courts as set out in clause 8.4.
If any dispute arises as mentioned in clause 11.1, representatives of both parties, vested with authority to settle the dispute, will meet and attempt in good faith to resolve the dispute. The meeting will be held reasonably promptly at the request of either party in the offices of the party requesting the meeting or at any other mutually agreed venue.
If the parties are unable to resolve the dispute by negotiation, the parties shall, normally within ten (10) working days, select by mutual agreement an independent expert who will then within (10) working days determine whether the relevant Ship Data was completely accurate and complete on the date that the Data User instructed IAPH to remove the Ship Data from the ESI Website. If the independent expert determines that the relevant Ship Data:
- a. was completely accurate and complete on the date that the Data User instructed IAPH to remove the Ship Data from the ESI Website, then the Data User shall, as an exclusive remedy for the Data Provider, instruct IAPH immediately to recommence publishing that Ship Data on the ESI Website;
- b. was not completely accurate or complete on the date that the Data User instructed IAPH to remove the Ship Data from the ESI Website, then the Data Provider shall, as an exclusive remedy for all Data Users, immediately return any benefit granted by any Data User on the basis of the relevant Ship Data.