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Nautical Terms of Service

These Terms of Service, as amended from time to time (these “Terms”)  constitute a legally binding agreement as of the Effective Date (as defined below), governing your access to, and the use of The Nautical Cloud service and any related website owned or operated by Nautical Cloud (the  “Sites”), and the use of, and registration with, nautical-cloud.com Service (defined below) through the Sites,  a mobile application or through any other means. These Terms are between Nautical Cloud Limited Ltd. (Chancery House, 30 St Johns Road, Woking, Surrey, United Kingdom, GU21 7SA) (“Nautical Cloud”, “us”, “we” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (“you” or “your”).  In case you represent your employer or another entity,  you hereby represent that (i) you have full legal authority to bind your employer or such entity (as  applicable) to these Terms; and (ii) after reading and understanding these Terms, you agree to these  Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind  your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING INTO THE  SERVICE; AND (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

AS ELABORATED IN SECTION 2 BELOW, THERE ARE VARIOUS TYPES OF USERS FOR THE SERVICE, THUS, EXCEPT WHERE INDICATED OTHERWISE “YOU” SHALL REFER TO CUSTOMER AND ALL TYPES OF USERS. YOU ACKNOWLEDGE THAT THESE TERMS ARE BINDING, AND YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THESE TERMS, BY EITHER: (I) CLICKING ON A BUTTON OR CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THESE TERMS; OR (II) REGISTERING TO, USING OR ACCESSING THE SERVICE, SITES OR Nautical Cloud MOBILE APPLICATION,  WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”).

IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESE TERMS OR DO NOT HAVE  AUTHORITY TO BIND YOUR EMPLOYER OR ANY OTHER ENTITY (AS APPLICABLE), PLEASE DO  NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE OR THE SITES OR MOBILE APPLICATION.

  1. Our Service.

1.1. Our Service.

The Nautical Cloud platform is a cloud-based Sail Event and Club management tool offered online and via a mobile application (the “Service”).

1.2. Modification or Discontinuation of the Service.

We may add, modify or discontinue any feature, functionality or any other tool, within the Service and/or Sites, at our own discretion and without further  notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement on the Sites and/or via the Service or by sending you an  email.

1.3. No Contingency on Future Releases and Improvements.

You hereby acknowledge that your purchase of the Service is not contingent on  the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of: (i) a certain Service beyond its current Subscription Term; or (ii) Third Party Services,  or dependent on any public comments we make, orally or in writing, regarding any future functionality or feature.

1.4. Ability to Accept Terms.

If you, access and use the Sites and/or the Service, you represent and warrant that you are at least 16 years old. The Sites and/or Service are only intended for individuals aged sixteen (16) years or older. We reserve the right to request proof of age at any stage so that we can verify compliance with this paragraph.

  1. Account Registration and Administration.

2.1. Account Registration.

To register to the Service for the first time, you shall create an account with the Service. By creating an account (“Account”) and registering to the Service you become, either individually or on behalf of your employer or any entity, on behalf of whom you created the Account, a  Nautical Cloud customer (the “Customer”). The first user of the Account is automatically assigned as the Account administrator (the “Admin”).

2.2. Your Registration Information.

When creating an Account or when you are added into an Account and creating your user profile (the “User Profile”), you: (i) agree to provide us with accurate, complete,  and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure  that your password remains confidential and secure; (iii) agree that you are fully responsible for all  activities that occur under your User Profile and password, including any integration or any other use of  third party products or services (and associated disclosure of data) in connection with the Service; and  (iv) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of  your Account or User Profile and/or any breach of these Terms. We may assume that any communications we receive under your User Profile have been made by you. The Customer will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party on your  behalf.

2.3. User Verification.

You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User Profile.  In the event that you or the Admin lose access to an Account or otherwise request information about an Account, we reserve the right to request from you or such Admin (as the case may be) any verification we deem necessary before restoring access to or providing information about such Account.

2.4. Account Admins.

The Admin(s) of an Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a  decision or action of Customer. An Admin may assign or add other members of the Account as Admins,  which possess important privileges and controls over the use of the Service and the Account, including,  without limitation: (i) control your (and other Users) use of the Account; (ii) purchase, upgrade or  downgrade the Service; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise change, all or part of the Customer Data (as defined  below. You also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered.

2.5. Other Users.

There are several types of Account users, such as guests, viewers and team members, all of whom are defined within the Service and referred to herein as “Authorized Users”, and collectively with the Admin, the “Users”. The features and functionalities available to the Users are determined by the respective subscription plan governing such Account, and the privileges of each such Authorized User are assigned and determined by the Account Admin(s).

2.6. Responsibility for Authorized Users.

The Customer is solely liable and responsible for understanding the settings, privileges and controls for the Service and for controlling whom Customer permits to  become a User and what are the settings and privileges for such User, including without limitation, the  right for a User to invite other Users ,the right to incur charges on the Account,  the right to access, modify etc. The Customer is responsible for the activities of all of its Users and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, The Customer acknowledges that any action taken by a User of The Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no claim in this regard.

  1. Your Customer Data.

3.1. Customer Data.

Customer Data is any data, file attachments, text, images, reports, personal information, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Service by you or any User and is processed by us on The Customer’s behalf (the “Customer Data”). For the avoidance of doubt, Anonymous Information (as defined below) is not regarded as Customer Data. The Customer retains all right, title, interest and control, in and to the Customer Data, in the form submitted to the Service. Subject to these Terms, The Customer grants us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting The Customer Data for display in the Service constitutes a modification or derivative work, the foregoing license also includes the right to make  modifications and derivative works. The afore-mentioned license is hereby granted solely: (i) to maintain  and provide you the Service; (ii) to prevent or address technical or security issues and resolve support  requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that  such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request,  or other lawful process; and (v) as expressly permitted in writing by you.

3.2. Responsibility for Customer Data Compliance.

You represent and warrant that: (i) you have or  have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the  rights granted herein, for any Customer Data that you submit, post or display on or through the Service;  (ii) the  Customer Data you submit, your use of such Customer Data, and our use of such Customer Data, as  set forth in these Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks  or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party;  (b) violate any applicable local, state, federal and international laws, regulations and conventions,  including those related to data privacy and data transfer and exportation (the “Laws”); (c) violate any of  your or third party’s policies and terms governing the Customer Data. Other than our security and data protection obligations expressly set forth in Section 6, we assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using,  disclosing, storing, or transmitting it. It is hereby clarified that Nautical Cloud shall not monitor and/or moderate the Customer Data and there shall be no claim against Nautical Cloud of not acting so.

3.3. No Sensitive Data.

You shall not submit to the Service any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation  in other jurisdiction.

  1. Public User Submissions.

4.1. Public User Submissions.

The Sites may have certain features that allow you to submit comments, information, and other materials publicly (collectively, “Public User Submissions”) and share such Public User Submissions with other Users, or the public. By submitting Public User Submissions through the  Sites, you grant us a license to access, use, copy, reproduce, process, adapt, publish, transmit, host,  and display that Public User Submissions for any purpose, business, including without limitation, for  publicizing and promoting Nautical Cloud, the Service and/or the Sites and for any other lawful purpose,  in any media format (e.g. in-print, websites. electronically, broadcast), and you hereby waive, or to the extent legally prohibited, assign to Nautical Cloud, any moral rights in your Public User Submissions.

4.2. Responsibility for Public User Submissions.

You acknowledge and agree that: (i) you have or have  obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights  granted herein, for any Public User Submissions that you submit, post or display on or through the  Service; (ii) we do not control, and are not responsible for, other content and/or submissions, posted on  our Sites and/or Service by others; (iii) by using the Service and/or Sites, you may be exposed to content  and/or submissions by other users or site visitors that is offensive, indecent, inaccurate, misleading, or  otherwise unlawful.

  1. Intellectual Property Rights; License.

5.1. Our Intellectual Property.

The Service and Sites, inclusive of materials, such as software,  application programming interface, design, text, editorial materials, informational text, photographs,  illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks  and services marks (excluding Customer Data), any and all related or underlying technology and any  modifications, enhancements or derivative works of the foregoing (collectively, “Nautical Cloud Materials”), are the property of Nautical Cloud and its licensors, and may be protected by applicable  copyright or other intellectual property laws and treaties. As between you and Nautical Cloud, Nautical Cloud retains all right, title and interest, including all intellectual property rights, in and to the Nautical Cloud Materials.

5.2. Customer Reference.

Customer acknowledges and accepts that Nautical Cloud has the right to use  Customer’s name and logo to identify Customer as a customer of Nautical Cloud or User of the Service,  on Nautical Cloud’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting [email protected].

5.3. Your Access and Use Rights.

Subject to the terms and conditions of these Terms, and your compliance thereof, we grant you  a limited, worldwide, non-exclusive, non-transferable right to access and use the Service and Sites,  during the applicable Subscription Term.

5.4. Use Restrictions.

Except as expressly permitted in these Terms, you may not, and shall not allow  an Authorized User or any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose,  publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the  Service or the Sites to any third party, including, but not limited to your affiliates, or use the Service in  any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related  features of the Sites or Service or features that prevent or restrict use or copying of any content or that  enforce limitations on use of the Service or Sites; (iii) reverse engineer, decompile or disassemble,  decrypt or, attempt to derive the source code of, the Service or Sites, or any components thereof; (iv)  copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service or  Sites, or any part thereof; (v) take any action that imposes or may impose (at Nautical Cloud’s sole  discretion) an unreasonable or disproportionately large load on the Nautical Cloud infrastructure or  infrastructure which supports the Sites or Service; (vi) interfere or attempt to interfere with the integrity or proper working of the Service or Sites, or any related activities; (vii) remove, deface, obscure, or alter  Nautical Cloud or any third party’s identification, attribution or copyright notices, trademarks, or other  proprietary rights affixed to or provided as part of the Service or Sites, or use or display logos of the  Service or Sites without Nautical Cloud’s prior written approval; (viii) use the Service or Sites for  competitive purposes, including to develop or enhance a competing service or product; or (ix)  encourage or assist any third party (including other Authorized Users) to do any of the foregoing.

5.5. Feedback.

As a User of the Service and/or Sites, you may provide suggestions, comments, feature requests or other feedback to any of Nautical Cloud Materials. Such Feedback is deemed an integral part of  Nautical Clouds  Materials, and as such, it is the sole property of Nautical Cloud without restrictions or  limitations on use of any kind. Nautical Cloud may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate,  complete, and does not infringe on any third party rights; (ii) irrevocably assign to Nautical Cloud any right,  title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all  claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.

5.6. API Use.

We may offer an application programming interface that provides additional ways to access and use the Service (“API“). Such API is considered a part of the Service, and its use is subject to all these Terms. Without derogating from Sections 5.1 through 5.4 hereof, you may only access and  use our API for Customer’s internal business purposes, in order to create interoperability and integration  between the Service and other products, services or systems you and/or Customer use internally. When  using the API you should follow our relevant developer guidelines. We reserve the right at any time to  modify or discontinue, temporarily or permanently, your and/or Customer’s access to the API (or any  part of it) with or without notice. The API is subject to changes and modifications, and you are solely  responsible to ensure that your use of the API is compatible with the current version.

  1. Privacy and Security.

6.1. Security.

Nautical Cloud implements reasonable security measures and procedures to assist in protecting your Customer Data.

6.2. Privacy Policy.

As a part of accessing or using the Service and the Sites, we may collect, access,  use and share certain Personal Data (as defined in the Privacy Policy on our site) from, and/or about, you. The Privacy Policy is incorporated herein by reference, for a description of such data collection and use practices.

6.3. Data Processing Agreement (“DPA”).

By using the Service, Customer also accepts our Data Processing Agreement (Published on the Nautical Cloud Site) which governs the Processing of Personal Data (as both terms are defined in  the DPA) on Customer’s behalf, where such Personal Data is subject to the General Data Protection  Regulation 2016/679 (the “GDPR”).

6.4. Anonymous Information.

Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Service and/or Sites, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Sites and Service, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information.  Nautical Cloud owns all Anonymous Information collected or obtained by Nautical Cloud.

  1. Subscription Term, Renewal and Fees Payment.

8.1. Order Form.

Our order form may be completed and placed in various ways, among which, an online form or in-product screens or any other mutually agreed upon offline form delivered by Customer or any of the other Users to Nautical Cloud, including via mail, email or any other electronic or physical delivery mechanism (the “Order Form”). Such Order Form will list, at the least, the Service ordered, subscription plan, term and the associated fees.

8.2. Subscription Term.

The Service is provided on a subscription basis for the term specified in your  Order Form, in accordance with the respective subscription plan purchased under such Order Form  (the “Subscription Term” and the “Subscription Plan”, respectively, and collectively the “Subscription”).

8.3. Subscription Fees.

In consideration for the provision of the Service (except for Trial Service),  Customer shall pay us the applicable fees per the purchased Subscription, as set forth in the applicable  Order Form (the “Subscription Fees”). Unless indicated otherwise, Subscription Fees are stated in US  dollars. Customer hereby authorizes us, either directly or through our payment processing service or our affiliates, to charge such Subscription Fees via Customer’s selected payment method, upon due date. Unless expressly set forth herein, the Subscription Fees are non-cancellable and non-refundable. We reserve the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscriptions upon renewal. In the event of failure to collect the Fees owed

by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice.

8.4. Taxes.

The Subscription Fees are exclusive of any and all taxes (including without limitation, value  added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be  imposed in respect of these Terms and the purchase or sale, of the Service hereunder (the “Taxes”),  except for Taxes imposed on our income. If Customer is located in a jurisdiction which requires  Customer to deduct or withhold Taxes or other amounts from any amounts due to us, please notify us,  in writing, promptly and we shall join efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax should  be deemed as being added on top of the Subscription Fees, payable by Customer.

8.5. Subscription Upgrade.

During the Subscription Term, Customer may upgrade its Subscription  Plan by either: (i) adding Authorized Users; (ii) upgrading to a higher type of Subscription Plan; (iii)  adding add-on features and functionalities; and/or (iv) upgrading to a longer Subscription Term  (collectively, “Subscription Upgrades”). Some Subscription Upgrades or other changes may be  considered as a new purchase, hence will restart the Subscription Term and some won’t, as indicated  within the Service and/or the Order Form. Upon a Subscription Upgrade, Customer will be billed for the applicable increased amount of Subscription Fees, at our then-current rates (unless indicated otherwise  in an Order Form), either: (1) prorated for the remainder of the then-current Subscription Term, or (2)  whenever the Subscription Term is being restarted due to the Subscription Upgrade, then the  Subscription Fees already paid by Customer will be reduced from the new upgraded Subscription Fees,  and the difference shall be due and payable by Customer upon the date on which the Subscription  Upgrade was made.

8.7. Excessive Usage.

We shall have the right, including without limitation where we, at our sole  discretion, believe that Customer and/or any of its Users, have misused the Service or otherwise use  the Service in an excessive manner compared to the anticipated standard use (at our sole discretion),  to offer the Subscription in different pricing and/or impose additional restrictions as for the upload,  storage, download and use of the Service, including, without limitation, restrictions on Third Party  Services, network traffic and bandwidth, size and/or length of content, quality and/or format of content,  sources of content, volume of download time, etc.

8.8. Billing.

As part of registering, or submitting billing information, to the Service, Customer agrees to  provide us with updated, accurate and complete billing information, and Customer authorizes us (either  directly or through our affiliates, including Nautical Cloud or other third parties) to charge, request and collect  payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment  method or designated banking account, and to make any inquiries that we (or our affiliates and/or third-parties acting on our behalf) may consider necessary to  validate Customer’s designated payment account or financial information, in order to ensure prompt  payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by  Customer’s credit card company).

8.9. Subscription Auto-Renewal.

In order to ensure that Customer will not experience any interruption  or loss of services, Customer’s Subscription includes an automatic renewal option by default, according  to which, unless Customer disables the auto-renewal option or cancels its Subscription prior to its  expiration, the Subscription will automatically renew upon the end of the then applicable Subscription

Term, for a renewal period equal in time to the original Subscription Term (excluding extended periods)  and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and  excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly,  unless either Customer or us cancel the Subscription prior to its expiration, we will attempt to  automatically charge Customer the applicable Subscription Fees upon or immediately prior to the  expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal,  Customer shall cancel its Subscription (or disable the auto-renewal option), prior to its expiration, at any  time through the Account settings or by contacting our us. Except as expressly  set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the  Subscription will not renew for an additional period, but Customer will not be refunded or credited for  any unused period within the Subscription Term.

8.10. Discounts and Promotions.

Unless expressly stated otherwise in a separate legally binding  agreement, if Customer received a special discount or other promotional offer, Customer acknowledges that upon renewal of its Subscription, Nautical Cloud will renew such Subscription, at the full applicable  Subscription Fee at the time of renewal.

8.11. Credits.

Any credits that may accrue to Customer’s Account, for any reason (the “Credits”), will  expire and be of no further force and effect, upon the earlier of: (i) the expiration or termination of the  applicable Subscription under the Account for which such Credits were given; or (ii) in case such Credits  accrued for an Account with a Trial Subscription (as defined below) that was not upgraded to a  Subscription Plan, then upon the lapse of 90 days of such Credits’ accrual. Unless specifically indicated  otherwise, Credits may be used to pay for the Services only and not for any Third Party Service or other  payment of whatsoever kind. Whenever fees are due for any Services, accrued Credits will be first  reduced against the Subscription Fees and the remainder will be charged from Customer’s respective  payment method. Credits shall have no monetary value (except for the purchase of Services under the  limited terms specified herein) nor exchange value, and will not be transferable or refundable.

  1. Refund Policy; Chargeback.

9.1. Chargeback.

If, at any time, we record a decline, chargeback or other rejection of a charge of any  due and payable Subscription Fees on Customer’s Account (“Chargeback”), this will be considered as  a breach of Customer’s payment obligations hereunder, and Customer’s use of the Service may be  disabled or terminated and such use of the Service will not resume until Customer re-subscribes for any  such Service, and pay any applicable Subscription Fees in full, including any fees and expenses incurred  by us and/or any Third Party Service for each Chargeback received (including handling and  processing charges and fees incurred by the payment processor), without derogating from any other  remedy that may be applicable to us under these Terms or applicable law.

  1. Trial Service; Pre-Released Services.

10.1. Trial Service.

We may offer, from time to time, part or all of our Services on a free, no-obligation trial version (“Trial Service”). The term of the Trial Service shall be as communicated to you, within the  Service, in an Order Form, unless terminated earlier by either Customer or us, for any reason or for no  reason. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without  liability or explanation to you. In respect of a Trial Service that is a trial version of the Subscription Plan  (the “Trial Subscription”), upon termination of the Trial Subscription, we may change the Account web  address at any time without any prior written notice.

10.2. Pre-Released Services.

Note that we may offer, from time to time, certain Services in an Alpha or Beta versions (the “Pre-Released Services”) and we use best endeavours to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such  they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as  intended and designated, more than usual.

10.3. Governing Terms of Trial Service and Pre-Released Services.

The Trial Service and Pre-Released  Services are governed by these Terms, provided that notwithstanding anything in these Terms or  elsewhere to the contrary, in respect of Trial Service and Pre-Released Services (i) such services are  licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or  implied, of any kind; (ii) the indemnity undertaking by us set forth in Section 16.2 herein shall not apply;  and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF Nautical Cloud, ITS  AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION  WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES),  EXCEED US$100. We make no promises that any Trial Service and/or Pre-Released Services will be made available to you and/or generally available.

  1. Term and Termination; Suspension.

11.1. Term.

These Terms are in full force and effect, commencing upon the Effective Date, until the end  of the Service underlying the Account, either paid or unpaid, unless terminated otherwise in accordance  with these Terms.

11.2. Termination for Cause.

Either Customer or us may terminate the Service and these Terms, upon written notice, in case that (a) the other party is in material breach of these Terms and to the extent,

curable, fails to cure such breach, within a reasonable cure period, which shall not be less than 10 days  following a written notice from by the non-breaching party; or (b) ceases its business operations or  becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days.

11.3. Termination by Customer.

Customer may terminate its Subscription to the Service by cancelling  the Service and/or deleting the Account, whereby such termination shall not derogate from Customer’s  obligation to pay applicable Subscription Fees except where such termination is made within the Refund  Period. In accordance with Section 9 above, unless mutually agreed otherwise by Customer and us in a  written instrument, the effective date of such termination will take effect at the end of the then-current  Subscription Term, and Customer’s obligation to pay the Subscription Fees throughout the end of such  Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any pre-paid Subscription Fees.

11.4. Effect of Termination of Service.

Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to you hereunder shall terminate, and we may change the Account’s web address. It is Customer’s sole liability to export the Customer Data prior to such termination or expiration. In the event that Customer did not delete the Customer Data from the Account, we may  continue to store and host it until either Customer or we, at our sole discretion, delete such Customer  Data, and during such period, Customer shall still be able to make a limited use of the Service in order  to export the Customer Data (the “Read-Only Mode”), but note that we are not under any obligation to  maintain the Read-Only Mode period, hence such period may be terminated by us, at any time, with or  without notice to Customer, and subsequently, the Customer Data will be deleted. Customer acknowledges the foregoing and its sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to Customer, nor to any User or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Subscription Fees.

11.5. Survival.

Section 2.6 (Responsibility for Authorized Users), 3 (Customer Data), 6 (Privacy and  Security),8 (Subscription Term, Renewal and Fees Payment) in respect of  unpaid Subscription Fees, 10.3 (Governing Terms of Trial Services and Pre-Released Services), 11 (Term and Termination; Suspension), 12 (Confidentiality), 13 (Warranty Disclaimer), 14 (Limitations of  Liability), 16 (Indemnification), 21 (Governing Law and Jurisdiction; Class Action Waiver and Arbitration) and 22 (General Provisions), shall survive the termination or expiration of these Terms, and continue to  be in force and effect in accordance with their applicable terms.

11.6. Suspension.

Without derogating from our termination rights above, we may decide to temporarily  suspend the Account and/or a User Profile (including any access thereto) and/or our Service, in the  following events: (i) we believe, at our sole discretion, that you or any third party, are using the Service  in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise  any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are  using the Service in breach of these Terms or applicable Law; (iii) Customer’s payment obligations, in  accordance with these Terms, are or are likely to become, overdue. The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.

  1. Confidentiality.

12.1. Confidential Information.

In connection with these Terms and the Service (including the evaluation  thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public  business, product, technology and marketing information, including without limitation, customers lists  and information, know-how, software and any other non-public information that is either identified as  such or should reasonably be understood to be confidential given the nature of the information and the  circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as Customer’s Confidential Information, and (ii) our Site, Service, Trial Service and/or Pre-Released Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes  generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was  known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any  obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation  owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any  use or reference to the Confidential Information.

12.2. Confidentiality Undertakings by the Receiving Party.

The Receiving Party will (i) take at least  reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit  access to those employees, affiliates, service providers and agents, on a need to know basis and who  are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use  or disclose any Confidential Information to any third party, except as part of its performance under these  Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in  connection with a due diligence process that the Receiving Party is undergoing, provided that any such  disclosure shall be governed by confidentiality obligations at least as restrictive as those contained  herein.

12.3. Compelled Disclosure.

Notwithstanding the above, Confidential Information may be disclosed  pursuant to the order or requirement of a court, administrative agency or other governmental body;  provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to  provide prompt written notice of such court order or requirement to the Disclosing Party to enable the  Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

  1. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

13.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITES AND THE SERVICE ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD-PARTY SERVICE PROVIDERS, HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.

13.2. WE AND OUR VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICE AND SITES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND/OR SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CUSTOMER DATA) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.

13.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT WARRANT, AND EXPRESSLY  DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT OUR SERVICE (OR ANY PORTION  THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR  COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING  SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT,  INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE AND/OR THE  SITES.

  1. Limitation of Liability.

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

14.1. IN NO EVENT SHALL EITHER PARTY HERETO AND ITS AFFILIATES, SUBCONTRACTORS,  AGENTS AND VENDORS (INCLUDING, THE THIRD PARTY SERVICE PROVIDERS), BE LIABLE  UNDER, OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR (I) ANY INDIRECT,  EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, USE,  BUSINESS, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE FAILURE OF SECURITY  MEASURES AND PROTECTIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY  OF LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE  POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL  PURPOSE.

14.2. EXCEPT FOR THE INDEMNITY OBLIGATIONS OF EITHER PARTY UNDER SECTION 16 (INDEMNIFICATION) HEREIN, YOUR PAYMENT OBLIGATIONS HEREUNDER BY EITHER YOU OR IN CASE OF A CUSTOMER, ANY OF THE USERS  UNDERLYING ITS ACCOUNT, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER  PARTY, ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE ITS  THIRD-PARTY SERVICE PROVIDERS), UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES AND THE SERVICE), EXCEED THE TOTAL AMOUNT OF FEES  ACTUALLY PAID BY YOU (IF ANY) DURING THE 12 CONSECUTIVE MONTHS PRECEDING THE  EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

  1. Specific Laws; Reasonable Allocation of Risks.

15.1. Specific Laws.

Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.

15.2. Reasonable Allocation of Risks.

You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.

 

  1. Indemnification.

16.1. By Customer.

Customer hereby agrees to indemnify, defend and hold harmless Nautical Cloud and  its affiliates, officers, directors, employees and agents from and against any and all claims, damages,  obligations, liabilities, losses, reasonable expenses or costs (collectively, “Losses”) incurred as a result  of any third party claim arising from (i) Customer’s and/or any of its Users’, violation of these Terms or  applicable Law; and/or (ii) Customer Data, including the use of Customer Data by Nautical Cloud and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation,  intellectual property, privacy and/or publicity rights.

16.2. By Nautical Cloud.

Nautical Cloud hereby agrees to defend Customer, its affiliates, officers, directors,  and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use of the Service infringes or constitutes misappropriation of any third party’s copyright, trademark or registered US patent (the “IP Claim”), and we will indemnify Customer and hold  Customer harmless against any damages and costs finally awarded on such IP Claim by a court of  competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees.

Nautical Cloud’s indemnity obligations under this Section 16 shall not apply if: (i) the Service (or any  portion thereof) was modified by Customer or any of its Users or any third party, but solely to the extent  the IP Claim would have been avoided by not doing such modification; (ii) if the Service is used in  combination with any other service, device, software or products, including, without limitation, Third  Party Services, but solely to the extent that such IP Claim would have been avoided without such  combination; and/or (iii) any IP Claim arising or related to, the Customer Data or to any events giving  rise to Customer’s indemnity obligations under Section 16.1 above. Without derogating from the  foregoing defence and indemnification obligation, if Nautical Cloud believes that the Service, or any part  thereof, may so infringe, then Nautical Cloud may in its sole discretion: (a) obtain (at no additional cost to  you) the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the  Service so that it becomes non-infringing while giving substantially equivalent performance; or (c) if  Nautical Cloud determines that the foregoing remedies are not reasonably available, then Nautical Cloud may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an  event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of  the Subscription Term. THIS SECTION 16.2 STATES Nautical Cloud’s SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY Nautical Cloud AND/OR ITS SERVICE AND UNDERLYING TECHNOLOGY.

16.3. Indemnity Conditions.

The defence and indemnification obligations of the indemnifying party under  this Section 16 are subject to: (i) the indemnified party shall promptly provide a written notice of the  claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will  not relieve the indemnifying party of its obligations under this Section 16, except to the extent the  indemnifying party’s defence is materially prejudiced thereby; (ii) the indemnifying party being given  immediate and exclusive control over the defence and/or settlement of the claim, provided, however that  the indemnifying party shall not enter into any compromise or settlement of any such claim that that  requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by  an indemnitee without the prior written consent of the affected indemnitee, which shall not be  unreasonably withheld or delayed; and (iii) the indemnified party providing reasonable cooperation and  assistance, at the indemnifying party’s expense, in the defence and/or settlement of such claim and not  taking any action that prejudices the indemnifying party’s defence of, or response to, such claim.

 

  1. Third Party Components within Our Service

Our Service includes third party codes and libraries that are subject to third party open-source license terms (the “Open-Source Code” and the “Open-Source Terms”, respectively). Some of such Open-Source Terms determine that to the extent applicable to the respective Open-Source Code licensed thereunder, such terms prevail over any conflicting license terms, including these Terms. We use our best endeavours to identify such Open-Source Code, within our Service, hence we encourage Customer to familiarize itself with such Open-Source Terms. Note that we use best efforts to use only Open-Source Codes that does not impose any obligation or affect the Customer Data or related intellectual property (beyond what is stated in the Open-Source Terms and herein), on an ordinary use of our Service that does not involve any modification, distribution or independent use of such Open Source Code. Notwithstanding anything to the contrary, we make no warranty or indemnity hereunder with respect to  any Open Source Codes.

  1. Export Controls; Sanctions.

The Service may be subject to U.S. or foreign export controls, Laws and regulations (the “Export  Controls”), and you acknowledge and confirm that: (i) you are not located or use, export, re-export or  import the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or  otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating  from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S.  economic or trade sanctions (currently, Cuba, Iran, Syria, North Korea, or the Crimea region of Ukraine), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (c) otherwise the target of U.S. sanctions.  Customer is solely responsible for complying with applicable Export Controls and sanctions which may  impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the  Services and/or the Customer Data; and (iii) Customer Data is not controlled under the U.S. International  Traffic in Arms Regulations or similar Laws in other jurisdictions, or otherwise requires any special  permission or license, in respect of its use, import, export or re-export hereunder.

  1. Modifications.

Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide Customer with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending Customer an email. Your continued use of the Service after the changes have been implemented will constitute your acceptance of the changes.

  1. Dispute Resolution

21.1. Arbitration.

To the extent permitted under applicable Law, you and Nautical Cloud hereby irrevocably agree to the following provisions:

21.1.1 Dispute resolution and Arbitration.

Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.

21.1.2 Exception.

Notwithstanding clause 21.3.1 above, you and Nautical Cloud both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law. In addition to the above, notwithstanding clause 21.3.1 above, Nautical Cloud may file a suit in a court of law against you to address intellectual property infringement claims.

  1. General Provisions.

22.1. Force Majeure.

Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

22.4. Notice.

We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section 22.4. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Sites or posting in your account, text, in-app notification, e-mail, phone or first class, airmail, or overnight courier. You further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery.

22.5. Assignment.

These Terms, and any and all rights and obligations hereunder, may not be  transferred or assigned by you without our written approval, provided that you may assign these Terms  to your successor entity or person, resulting from a merger, acquisition, or sale of all or substantially all  of your assets or voting rights, except for an assignment to a competitor of Nautical Cloud, and provided  that you provide us with prompt written notice of such assignment and the respective assignee agrees,  in writing, to assume all of your obligations under these Terms. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Service to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section 22.5 shall be null and void.

22.6. Severability.

These Terms shall be enforced to the fullest extent permitted under applicable Law.  If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the

provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.

22.7. No Waiver.

No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.