The
context of this Guest Agreement is as follows:
A.
The Port Corporation operates an internet based website (the Website) and provides
various facilities related to the Website.
B.
The Port Corporation agrees to grant to the Guest a licence to access and use the
Website (Licence) in accordance with this Guest Agreement. This Licence has
been given on the understanding that the Guest wishes to use the Website to
provide information to The Port Corporation in relation to Dangerous Cargoes, Notifications of
Arrivals, Work and Bunker Permits, Storage Allocations, Manifests and to view
Shipping Movements Screens and other Enquiries.
The Website
The Website aims to:
(a) increase the efficiency and effectiveness of Shipping Movements;
(b) improve Information collection by The Port Corporation; and
(c) expand The Port Corporation’s industry competitiveness.
The Port Corporation grants
to the Guest a Licence to use the Website for the performance by the
Guest of its obligations under this Guest Agreement. There is no fee for the use of the Website by
the Guest under this Licence.
This
Agreement shall take effect upon the Guest or the Guest’s Authorised Users
entering into this Guest Agreement and shall continue until terminated in
accordance with this Agreement.
Obligations Of The
Guest
During the term of this Guest Agreement the Guest agrees to:
(d)
comply
with all applicable laws;
(e)
provide such information to The Port Corporation as is reasonably
necessary for The Port Corporation to provide it with access to view and use the Website. This
includes but is not limited to providing a list of its proposed Authorised
Users and information related to those Authorised Users;
(f)
ensure that the Guest’s Authorised Users are made
aware of and comply with the terms and conditions of this Guest Agreement.
(g)
must comply with any orders or directions of the
Administrator;
(h)
maintain and effect adequate security measures to
safeguard any Authentication Details and
Information, from access or use by any person not entitled to such
access or use;
(i)
not intentionally, recklessly or negligently interfere
with any other parties’ use of the Website;
(f) not use the Website for any other
function or activity other than for the purpose of viewing Shipping Movements
and supplying Information; and
(g) not dispose of, or grant to others any
right in or title to any Intellectual Property subsisting in the Website.
Availability
Only The Port Corporation may
approve and activate the Guest to use the Website.
The Port Corporation may in its discretion
limit the Guest’s access to view or use the Website. Unless otherwise notified
by The Port Corporation the Guest may access the Website 7 days a week, except during scheduled
maintenance times. The Help
Desk can be contacted during The Port Corporation’s Business Hours from Monday to Friday,
excluding public holidays or as otherwise advised by The Port Corporation from time to
time. The Port Corporation does not warrant that the
availability, performance and the Guest’s access to the Website will be
uninterrupted or error free.
The Port Corporation may from time to time amend this Guest
Agreement by 7 days notice in writing.
The Guest can accept or reject any such amendment within the 7 days
notice period. However, if the Guest uses or accesses the Website after the
expiry of the 7 day notice period, it will be deemed to have accepted any such
amendment.
Intellectual Property
The Guest
acknowledges that The Port Corporation owns or is licensed all Intellectual Property subsisting
in the Website, including the Website
Database, and that the Guest does not have any right, title or interest in the
Website or the Website Database.
The Guest
acknowledges that any Intellectual Property rights subsisting in the Website
Database shall vest immediately in The Port Corporation.
The Guest must not enter into any agreements or arrangements with
another Person to restrict The Port Corporation’s access or use of the Website Database without
The Port Corporation’s written consent.
Neither The Port Corporation nor the Guest will make public, disclose or use any Confidential Information, except to the extent necessary to comply with any government law, regulation or policy relating to the public disclosure of Confidential Information and under the following circumstances:
(j) The Port Corporation may extract information relating to the Guest’s use of the Website, including information which may identify the Guest or its Authorised Users; and
(k) The Guest may disclose The Port Corporation’s Confidential Information to the Guest’s officers and employees (only to the extent that each has a need to know) where the disclosure is essential to enable it to use the Website for the purposes only of viewing Shipping Movements and supplying information. The Guest must ensure that all of its Authorised Users who access any Confidential Information have been directed by the Guest to keep confidential all Confidential Information.
Events Beyond Reasonable Control
An obligation of a party under this Guest Agreement will be suspended during the time and to the extent that the party is prevented from or delayed in complying with that obligation by an Event.
Each party shall make all reasonable efforts to minimise the effects of an Event. If the affected party is prevented by an Event from performing its obligations for 30 days or any other period the Parties agree to in writing, then the other party may at its sole discretion immediately terminate this Guest Agreement. Where this Guest Agreement is terminated by either party in the above circumstances, the Parties will each bear their own costs.
Termination
Either party may terminate for convenience this Guest Agreement immediately without any further liability to the other.
Without prejudice to its rights at common law, upon a party committing a material breach of this Guest Agreement, the other party may terminate this Guest Agreement if:
(l) the breach cannot be remedied; or
(m) the other party fails to take reasonable steps to remedy the breach within 14 days after receiving notice requiring it to do so.
If the Guest enters into another agreement with The Port Corporation to use the Website this Guest Agreement will immediately terminate and the Guest must ensure that it and its Authorised Users cease using any Authentication Details they have been given by The Port Corporation to access the Website.
Issue Resolution
The Parties agree to
resolve any conflicts or issues between them (Issue) in relation to their obligations
under this Guest Agreement by the following process:
(n) by negotiation and referring the matter to The Port Corporation’s or Guests’ personnel who have the authority to intervene and direct some form of resolution;
(o) if the Issue is not resolved within 10 days of notice of the Issue, then either party may refer the Issue to the appropriate General Manager/Chief Financial Officer (Manager). Each party agrees to continue performing their obligations under this Guest Agreement while the Issue is being dealt with by the Manager; and
(p) if the Issue is not settled within 14 days (or within a period that The Port Corporation has agreed to) after the Manager has been notified, the Parties may terminate this Guest Agreement.
The above Issue
resolution process must be followed by the Parties before a party commences
court proceedings or takes similar action, except where a party wishes to seek
an urgent injunction or declaration.
Liability
The Guest acknowledges and agrees that
The Port Corporation’s cumulative aggregate liability to the Guest under or in connection with
this Guest Agreement for all Loss or Consequential Loss whether arising under
contract, tort (including negligence), law or otherwise is limited to the
re-performance of any service provided by The Port Corporation.
The Guest agrees to indemnify The Port Corporation, its
employees and agents harmless from Loss or Consequential Loss resulting or
arising out of the Guest’s and/or its Authorised Users breach of any warranty
or obligation under this Guest Agreement.
Notices
Any notices under
this Guest Agreement must be by Notice in Writing.
A waiver by one
party of a breach of a term of this Guest Agreement by the other party shall
not be taken to be a waiver of any other breach. The failure of either party to
enforce a term of this Guest Agreement will not be interpreted as a waiver of
that term.
If any part of this
Guest Agreement is void or voidable, then that part is severed from this Guest
Agreement but without affecting the continued operation of the remainder of
this Guest Agreement.
This Guest Agreement
is governed by the laws of the State of New South Wales, and the Parties submit
to the non-exclusive jurisdiction of the courts of the State of New South Wales
and the Commonwealth of Australia.
The covenants, conditions and provisions of
this Guest Agreement which are capable of and by implication are to have effect
after the expiration of this Guest Agreement shall remain otherwise in full
force and effect following the expiration of this Guest Agreement for a period
of six years.
DEFINITIONS AND INTERPRETATION
Definitions
These meanings apply in this Guest Agreement, unless the contrary
intention appears:
Administrator means The Port Corporation’s officer who will manage the
access and use of the Website by the Guest’s Authorised Users.
Authentication
Details means any log in
(access) and password details given by The Port Corporation to the Guest to access the Website.
Authorised Users means the Guest’s employees approved by The Port Corporation who may
access or use the Website for the purposes of viewing Shipping Movements and
supplying Information.
Bunker Permit means an
authority to transfer between ship and shore, any hydrocarbon and/or lubricants
by pipe/hose.
Business Hours means 8.00 am to 5.00 pm or as otherwise notified by
The Port Corporation from time to time.
Confidential Information means information, in relation to a party,
excluding Information that:
(i) is by its nature confidential;
(ii) is designated by that party as confidential other than information that is incorporated into the Website Database; or
(iii) the other party knows or ought to know is confidential which includes information available on or relating to the Website which is not publicly available.
Consequential Loss includes but is not limited to loss of
sales, loss of profit, loss of revenue, loss of goodwill or business
opportunities, damage to reputation and losses or expenses, even if a party
knew or should have known of the possibility of such loss or damage.
Dangerous Cargoes means cargoes as defined by AS3846-1998 (the handling and transport of
dangerous cargoes in port areas), including Dangerous Goods.
Enquiries means
data displayed on the Website pertaining (but not limited) to vessel
characteristics, summaries of visits by a vessel, tidal information, and
expected arrivals and vessels currently in the port.
Information means
information related to Dangerous
Cargoes, Notification of Arrivals, Work and Bunker Permits Storage Allocations
and Manifests.
Event means a circumstance beyond the reasonable
control of the Parties that results in a party not being able to perform an
obligation on time under this Guest Agreement. Such circumstances include but
are not limited to the following:
(iv) acts of God;
(v) lightning strikes, earthquakes, fires, floods;
(vi) national emergency, terrorism, acts of war, sabotage; or
(vii) a serious industrial dispute outside each party’s organisation.
Guest means the Shipping Agency that has been registered to access and use the Website by The Port Corporation and
has been provided with Authentication Details to supply to its Authorised
Users.
Guest Agreement means this contract between the Parties.
Help
Desk means the Information Technology Section of the The Port Corporation.
Intellectual Property means:
(viii) copyright, moral rights, patent, trademark, design, semi-conductor or circuit layout rights, trade, business or company names, or related rights, existing worldwide, whether created before or after the date of this Guest Agreement; and
(ix) any licence, consent, application or right, to use or grant the use of, or apply for the registration of, any of the rights referred to in paragraph (i) of this definition.
Licence means a non-exclusive,
non-transferable, revocable license to use the Website in accordance with this
Guest Agreement.
Loss means any loss, costs,
expenses, demands, proceedings, damages, liability, or similar claim.
Manifests
means particulars of a cargo being loaded or discharged. It includes (but is
not limited to) berth at which cargo is loaded/discharged, the tonnes of cargo,
description of the commodity, the origin/destination of the cargo and cargo
packaging (Pack Code).
Notification of
Arrival means the
nomination and details of a future visit by a ship. It contains (but is not
limited to) vessel name, expected dates of arrival and departure, preferred
berth, origin and destination, as well as cargo characteristics.
Notice in Writing means a notice by a party via email, fax or letter given to or served on the other party and:
(q) in the case of the Guest, at the address set out in this Guest Agreement or such other address as is notified in writing to the Supplier from time to time; or
(r)
in the case of The Port Corporation, at the address set out in this
Guest Agreement or such other address as is notified in writing by The Port Corporation from
time to time.
Parties mean The Port Corporation and the Guest.
Person includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency.
Website means the
The Port Corporation website at the URL http://www.kemblaport.com.au/
The Website Database means a collection of data generated through
the Website which can be retrieved, sorted, organised and managed by The Port Corporation.
Work Permits means an authority to undertake activities with
conditions as listed on the website.
Storage Allocations means areas
of the The Port Corporation’s land or wharves where cargo may be stored.
Shipping Movements means insert details
State means the state of New South Wales.