Smartsea Limited General Terms And Conditions

Version: 1.4.30012025

1. Definitions and Interpretation
1.1. Definitions
The following words have these meanings in this Agreement:
Affiliate means, with respect to any person, any entity that directly or indirectly through one or more intermediaries Controls or is Controlled by such person or is under direct or indirect common Control with such person.
Agreement means the service agreement into which these terms are incorporated.
Charges means, in respect of a Service, the fees and charges to be paid by Customer for the provision of that Service, as set out in the Pricing Schedule or elsewhere in this Agreement.
Confidential Information means all information furnished or disclosed, in whatever form or medium, by the Discloser (or any of its Affiliates or Representatives) to the Recipient for the Agreement before, on or after the date of this Agreement relating to the business, technology or other affairs of the Discloser or any of its Affiliates. Confidential Information includes, without limitations, all of the trade secrets, trademarks, business plans, marketing plans, know-how, data, contracts, documents, business concepts, customer lists, customer data, costs, financial information, profits, billings, referral sources, existing or future services, products, operations, management, pricing, financial status, goals, strategies, objectives and agreements of the Discloser and any of its Affiliates, all of which is deemed confidential and proprietary, but does not include any information which the Recipient can demonstrate:
(a) was publicly available at the time of disclosure or later became publicly available through no act or omission of the Recipient; or
(b) was already lawfully in its possession at the time of disclosure; or
(c) was rightfully received by the Recipient from a third party without any obligation of confidentiality known to the Recipient; or
(d) was independently developed by or for the Recipient without use of the Discloser’s Confidential Information.
Control means, in respect of an entity, the ability (whether it is legally enforceable or not) to control, whether directly or indirectly, the composition of the board of directors (or other governing body) of that entity, the voting rights of the majority of voting securities of the entity, or the management of the affairs of that entity.
Customer means the party set out in any contracts and/or service agreements and/or purchase orders and/or invoices and/or statements of work and/or offers.
Customer Data means the Confidential Information and Personal Data in data and files provided by or on Customer’s behalf to SmartSea pursuant to this Agreement for the Service.
Data means information which: a) is being processed by means of equipment operating automatically in response to instructions given for that purpose; or b) is recorded with the intention that it should be processed by means of such equipment.
Discloser means the party disclosing Confidential Information.
Dispute means any dispute, controversy, difference or claim between the parties as to the construction of this Agreement, the rights or obligations of a party or any other matter arising out of or relating to this Agreement including any question regarding the existence, validity or termination of this Agreement (in whole or in part).
Effective Date means the effective date set out in the Particulars.
Force Majeure Event means an event which: (a) is beyond the reasonable control of the affected party and which the affected party cannot prevent or overcome; and (b) prevents total or partial performance of the obligation(s) of the affected party, and does not arise through the fault or negligence of the affected party.
GDPR means the General Data Protection Regulation (EU) 2016/679 and any national implementing laws, regulation(s) and secondary legislation.
Generated Data means the data generated by the usage of Service in connection with transformation of data and files, and transmission of data, including public information in messages such as flight schedules, routes, price and flight features, and excluding the Customer Data (and for the avoidance of doubt excluding Personal Data).
Government Agency means any governmental, quasi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Insolvent means having an administrator appointed, being in receivership, in liquidation, in provisional liquidation, wound up, subject to any arrangement, assignment or composition, protected from creditors under any law, dissolved (other than to carry out a restructure while solvent) or being otherwise unable to pay debts when they fall due or anything with the same or similar effect in any jurisdiction.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Particulars means the particulars section at the start of this Agreement.
Personal Data means any data defined as such in the applicable Privacy Laws.
Privacy Laws means legislation, rules and regulations relating to data protection, personal information and privacy in any and all jurisdictions in or from which SmartSea provides the Service or any part or parts thereof.
Pricing Schedule means the schedule with that title attached to this Agreement.
Recipient means the party receiving Confidential Information.
Relevant CPI means the index stipulated in either: (a) the Service Schedule; or (b) the Particulars section of this Agreement, or if none is specified, the published and generally accepted consumer price index (or equivalent) in the country which is the primary headquarter of the Customer. If both (a) and (b) apply then, for the avoidance of doubt, the Service Schedule in an Agreement has priority over the Particulars section.
Representative means an employee, agent, officer, director, auditor, adviser, partner, consultant, joint venture or sub-contractor, or any similar role or position.
Service means a service provided pursuant to this Agreement as detailed in any Service Schedule, which may also include the provision of any equipment and/or software.
Service Period means, in respect of a Service, the period during which SmartSea will supply that Service to Customer, as specified in the relevant Service Schedule.
Service Schedule means, in respect of a Service, the schedule with that title incorporated into this Agreement that sets out the particular description of that Service.
SmartSea Data means data supplied by SmartSea to Customer in relation to the Service excluding the Customer Data.
SmartSea means SmartSea Limited, a company incorporated in Cyprus.
Term means the term of the Agreement as set out in clause 2.1.
UK GDPR means the United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
1.2. Interpretation. Unless the contrary intention appears, a reference in this Agreement to: (variations or replacement) a document (including this Agreement) includes any variation or replacement of it; (singular includes plural) the singular includes the plural and vice versa; (person) the word person includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any Government Agency; (dollars) United States dollars, dollars, US$ or $ is a reference to the lawful currency of the United States of America; (calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day; (meaning not limited) the words include, including, for example or such as when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind; (reference to anything) anything (including any amount) is a reference to the whole and each part of it.
1.3. If an act under this Agreement to be done by a party on or by a given day is done after 5.30 pm on that day (based on the local time zone of the Customer’s address indicated in this Agreement), it is taken to be done on the next day.
1.4. Headings are for convenience only and do not affect the interpretation of this Agreement.

2. Scope
2.1. This Agreement shall enter into force on the Effective Date and continue until terminated in accordance with its terms (Term).
2.2. SmartSea will provide the Service in consideration of Customer paying the Charges as specified in this Agreement.
2.3. SmartSea will make each Service available to the Customer for the relevant Service Period in the manner described in the Service Schedule. In order to use the Service, dependencies may apply. If the Services require interconnection with Customer systems, Customer will furnish, at Customer’s sole expense, sufficient technical resources to enable the operation of the Service.
2.4. Customer further agrees that it shall not provide access to the Service to any third party by any direct or indirect means, unless otherwise permitted in the Service Schedule.
2.5. Customer acknowledges and agrees that SmartSea has no control over Customer’s use of the Service, including (where applicable) the content of data transmitted through it by Customer or third parties, and agrees that Customer is solely responsible for the content of any data or information which it sends or receives using the Service. Without qualifying the previous sentence, Customer undertakes not to use the Service:
2.5.1. in a manner that, in the reasonable opinion of SmartSea, may adversely affect the efficiency, security or use of the Service by other SmartSea customers;
2.5.2. for an illegal purpose or in a manner that would cause SmartSea to be in breach of any law, local, national or international regulation;
2.5.3. to access any computer, network, or data of a person in any unauthorised manner, including attempting to:
(a) retrieve, alter or destroy data;
(b) probe, scan or test the vulnerability of a system or network; or
(c) breach or defeat any system or network security, authentication, authorisation, confidentiality, intrusion detection, monitoring, or other security measures;
2.5.4. to transmit, distribute, disseminate, publish, process or store any material that:
(a) violates any applicable law;
(b) infringes another person’s rights, including Intellectual Property Rights;
(c) is defamatory, abusive, obscene, indecent, or harassing; or
(d) contains software viruses, trojan horses or any computer code, files or programs, designed to disrupt, destroy, invade, gain unauthorised access to, corrupt, observe or modify without authorisation, data, software, computing or network devices, or telecommunications equipment.

3. Pricing
3.1. The Charges are as set out in the Pricing Schedule or elsewhere in the Agreement.
3.2. Customer will pay to SmartSea the Charges in accordance with this Agreement. Notwithstanding anything in this Agreement to the contrary, with not less than one-month’s prior written notice to Customer, SmartSea may increase the Charges relating to that Service once in each period of twelve (12) months in line with the annual positive unadjusted (i.e., not seasonally adjusted) percentage increase in the Relevant CPI. Notwithstanding anything to the contrary set out elsewhere in this Agreement, any notice to be given to Customer pursuant to this Clause may be delivered via email or posted on an online tool (e.g., SmartSea Billing portal).
3.3. SmartSea may commence invoicing the Charges for the Service in accordance with the Service Schedule or Pricing Schedule.
3.4. SmartSea may issue invoices electronically and such invoices shall be fully valid without a stamp or signature.
3.5. Subject to 3.6. below, SmartSea will invoice the Charges for the Service on a monthly basis.
3.6. At SmartSea’s option, invoices for Charges incurred which are less than $500 per month will not be issued monthly; such invoices be issued when the accumulated invoice sum exceeds $500, save that Charges may always be invoiced by SmartSea at the end of each calendar year.
3.7. The Charges shall be paid by the Customer within thirty (30) days of the date of the SmartSea invoice, unless expressly agreed otherwise in writing.
3.8. Unless otherwise specified in this Agreement, Charges are expressed in United States dollars (US$). Customer must pay the Charges in the currency in which they are expressed in this Agreement, unless it is precluded to do so by law.
3.9. The Charges do not include any Taxes, including any Goods and Services Tax (GST) of any country, and Customer must pay all Taxes arising in respect of the Services and Charges under this Agreement (excluding taxes on SmartSea’s income). In respect of withholding tax Customer agrees to pay such additional amounts as may be necessary, such that SmartSea receives the amount that it would have received had no withholding tax been imposed. “Taxes” means all taxes such as sales taxes, value added taxes, income tax, levies, imposts, charges and duties (including export, import, stamp and transactional duties), whether payable by withholding or otherwise, together with any interest, penalties, fines and expenses in connection with them, except if imposed on the net profit of a party.
3.10. Customer must pay all Charges and any other amounts due to SmartSea under this Agreement through direct debit, or, if direct debit is not available to the Customer as a method of payment, by bank transfer, in immediately cleared funds to SmartSea’s nominated bank account or as otherwise directed by SmartSea from time to time.
3.11. If any sum payable under this Agreement is not paid by the Customer when such sum is due, that sum shall bear interest calculated from the date the sum is due until payment is made in full. The interest rate applicable is SOFR plus two percent (2%). “SOFR” means the 3-month CME TERM SOFR, being the “Secured Overnight Financing Rate” published by the US Federal Reserve Bank of New York, on a quarterly basis, or if that rate is no longer published for any reason, the industry accepted replacement rate. If such interest rate exceeds the maximum legal rate in the jurisdiction where the Customer is located, then the interest rate shall be reduced to such maximum legal rate and if such interest rate is lower than the highest prescribed rate allowed under law, that higher rate shall apply. In the event invoicing is in EUR, then SOFR is replaced by “EURIBOR”. being the 3-month Euro Interbank Offered Rate published by the European Money Markets Institute, on a quarterly basis, or if that rate is no longer published for any reason, the industry accepted replacement rate.In the event invoicing is in any other currency, then SOFR is replaced by the interest rate of the central bank of the country of incorporation of the Customer, amended quarterly.
3.12. Customer may only make a claim that the Charges or any other amounts on an invoice for a Service are incorrect within six (6) months from the date of issue of the relevant SmartSea invoice.
3.13. Customer may not set off against any amount due for payment by Customer to SmartSea any amount owed by SmartSea to Customer, unless otherwise agreed in writing between SmartSea and Customer.

4. Confidentiality
4.1. The Recipient will use Discloser’s Confidential Information only for the Agreement, and will make no use of the Discloser’s Confidential Information, in whole or in part, for any other purposes.
4.2. The Recipient may not disclose Discloser’s Confidential Information to any person except:
4.2.1. to its Representatives, Affiliates or Representatives of its Affiliates, who have a legitimate need to know such information; or
4.2.2. with the consent of the Discloser (which may be given or withheld in its absolute discretion); or
4.2.3. if the Recipient is required to do so by law or by a stock exchange; or
4.2.4. if the Recipient is required to do so in connection with legal proceedings relating to this Agreement.
4.3. A Recipient disclosing Confidential Information to persons under clause 4.2.1 must advise such persons of this Agreement and direct them to treat Discloser’s Confidential Information in accordance with the terms of this Agreement.
4.4. A Recipient disclosing Confidential Information in accordance with clause 4.2.3 must:
4.4.1. give the Discloser prompt written notice of such required disclosure in order to afford the Discloser an opportunity to seek a protective order or other legal remedy to prevent the disclosure;
4.4.2. reasonably cooperate with the Discloser’s efforts to secure such a protective order or other legal remedy to prevent the disclosure; and
4.5. use reasonable efforts to resist disclosure until an appropriate protective order or other legal remedy to prevent the disclosure is obtained If, in the absence of a protective order or other legal remedy referred to in clause 4.4, the Recipient is legally required to disclose Discloser’s Confidential Information, the Recipient may disclose such information without liability hereunder, provided that the disclosure is limited to only the Confidential Information specifically required to be disclosed.
4.6. Upon written request, to the extent consistent with law or professional obligation, the Recipient will return to the Discloser or destroy all Confidential Information in any form and promptly destroy any and all material or information derived from the Confidential Information, including any copies, except that one copy of the same may be retained for archival, professional and evidence purposes only.
4.7. Except as otherwise agreed or duly required by law or any regulatory authority, no party will disclose the terms of this Agreement to any person other than its and its Affiliates’ Representatives (on a need to know basis).
4.8. The parties acknowledge and agree that the technical and other access information and details (including user identification details) in relation to the Service are SmartSea’s Confidential Information.
4.9. SmartSea may make a public announcement, following contract signature, relating to the Customer contracting for a particular service described in this agreement. Where requested by Customer, SmartSea and the Customer will use reasonable efforts to develop a joint communications plan with regards to such public announcements relating to the products or services purchased by the Customer. Each party will use reasonable efforts to ensure that all press releases in connection with products or services described in this agreement will be consistent with any joint communications plan.

5. Privacy and Data Security
5.1. If Customer or its Affiliates have provided to SmartSea any Personal Data to enable SmartSea to provide a Service, SmartSea will:
5.1.1. use and/or hold such Personal Data for the purposes and in the manner directed by Customer and shall not otherwise modify, amend or alter the contents of such Personal Data;
5.1.2. not disclose or permit the disclosure of such Personal Data to any third party, unless specifically authorised in writing by Customer;
5.1.3. return to Customer or delete (if so requested by Customer) such Personal Data when requested by Customer or on termination or expiry of this Agreement (whichever occurs first).
5.2. Customer will ensure that any Personal Data provided to SmartSea as referred to in clause 5.1 immediately above shall have been lawfully obtained and is limited to such Personal Data as is strictly necessary for the purposes of the Services.
5.3. Where SmartSea is unable to perform an obligation under this Agreement without breaching the Privacy Laws, SmartSea will notify Customer, but will not be obliged to perform such obligation for as long as performance will breach the Privacy Laws.
5.4. For the purposes of data security, SmartSea will:
5.4.1. take appropriate technical and organisational measures to protect all data handled by it as a consequence of the Services against accidental or unlawful destruction or accidental loss, alterations, and unauthorised disclosure or access; and
5.4.2. use reasonable commercial endeavours to protect data from virus infection or third party intervention.
5.5. In addition to the above obligations in this clause 5, the parties agree that in the event of any processing in connection with the Services by SmartSea of Customer Personal Data that is governed by the GDPR, that:
5.5.1. SmartSea as a processor agrees and Customer as a controller instructs SmartSea, for the duration of the Services, to process such Personal Data pursuant to the obligations of data processors stipulated by Article 28 of the GDPR, as if those obligations were set out in writing herein in full;
5.5.2. SmartSea shall comply with clause 5.4 in relation to the security of such Personal Data.
5.5.3. The subject matter, nature and purpose of the processing is processing of Personal Data required for the provision of the Services, the data subjects are (1) airline passengers, travellers, and individuals booking tickets, and their personal data to be processed includes name, dob, nationality, passport details, financial details, email address, and airline ticket and baggage data; and (2) Customer staff and their personal data to be processed is that necessary for Customer to utilise the Services including staff names, and contact details.
5.5.4. Customer agrees SmartSea may disclose Personal Data to any third party to which SmartSea is permitted to sub-contract any element of the Services in accordance with clause 13.3 (a Sub-processor) to the extent such disclosure is necessary for such third party’s provision of that element of the Services and provided that:
(a) SmartSea will have a written agreement in place with that Sub-processor which imposes obligations on the Sub-processor no less onerous than those set out in this clause 5.5.
(b) SmartSea will remain liable for the performance of such obligations by such third party.
5.5.5. Customer shall ensure that it will comply with its obligations under the GDPR in relation to its collection, processing and provision of Personal Data to SmartSea in connection with this Agreement, and that nothing required under the GDPR to be done by Customer as a controller prevents SmartSea from (and Customer consents to SmartSea) processing the Personal Data as necessary for the provision of the Services, and disclosing Personal Data to SmartSea’s Sub-processors or Affiliates, or third parties authorised by Customer to receive the data, in connection with the Services.
5.6. The parties agree that, in the event of any transfer(s) by Customer or its Affiliates of Personal Data to SmartSea or its Affiliates located outside the European Economic Area, SmartSea will not transfer that Personal Data unless it ensures that it complies with the obligations set out in the GDPR (or, for transfers out of the UK, the UK GDPR) regarding the transfer of Personal Data to third countries or international organisations, such as through the use of standard contractual clauses adopted by the European Commission pursuant to Article 46 of the GDPR (and for transfers out of the UK, the addition of an addendum to such standard contractual clauses, as approved by the UK Information Commissioners Office), provided the conditions for the use of those standard contractual clauses are met, in which case the standard contractual clauses (and addendum in the case of transfers out of the UK), as set out at Annex A, apply to this Agreement, and the parties agree that the signing of this Agreement constitutes deemed signature and incorporation of those standard contractual clauses (and the appendices to same) as required.

6. Intellectual Property
6.1. Customer acknowledges and agrees that all Intellectual Property Rights in the Service and other materials provided by SmartSea to Customer pursuant to this Agreement are either licensed to, or are the property of SmartSea, and nothing contained herein shall be deemed to convey any title or ownership interest therein to Customer. Customer’s only right with respect to such Intellectual Property Rights is the right to use such Intellectual Property Rights in relation to the Service provided hereunder.
6.2. SmartSea owns and retains all right, title and interest in and to any Intellectual Property Rights which have been independently developed and/or acquired prior to, or during the performance of, this Agreement or as a result of the performance of its obligations hereunder. SmartSea shall own and retain all right, title and interest in and to any Intellectual Property Rights which will be independently developed and/or acquired during further product development and service additions or adjustments based on learnings and Customer inputs provided, during the provision of the Service under this Agreement.

7. SmartSea Data and Generated Data and End of Life
7.1. Customer acknowledges and agrees that SmartSea owns all right, title and interest in and to the SmartSea Data and the Generated Data arising in any manner and form during provision of the Service and during the processing of Customer Data.
7.2. Subject to SmartSea’s compliance with all applicable laws, Customer agrees that SmartSea shall be entitled to:
7.2.1. use, process, aggregate, compile, exploit, disclose, combine, create derivative works using the aggregated Generated Data; and/or
7.2.2. conduct data mining, data gathering or data extraction in relation to such Generated Data for any business or commercial purpose, including:
(a) enhancement of the Service or other services;
(b) combining such data with SmartSea’s other customer’s derived usage data for the purposes of SmartSea’s reporting, which may consist of analytics, compilations of aggregated statistics about SmartSea’s services, or industry trends, and which may be provided to customers, potential customers or the general public (but will in no case include Personal Data received by SmartSea); and/or
(c) provision of Generated Data and/or new services to third parties.
7.3. End of Life: SmartSea may end support and/or end sales for any Service on no less than six (6) months notice to Customer based on standard operational reasons, provided that the Customer is first notified that the Service has entered an “EOL Risk Phase” which shall be no less than three (3) months in duration, during which the Customer and SmartSea shall be available for discussions regarding replacement services for the Services at risk. SmartSea’s End-of-Service/End-of-Life policies are available on request.

8. Representations and Warranties
8.1. Each party warrants and represents to the other that:
8.1.1. it has the right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and
8.1.2. all corporate and other action required to authorise the execution of this Agreement and its performance has been duly taken.
8.2. The Customer warrants that its procedures and the decision to appoint SmartSea to perform the Agreement as the supplier of the Service complies with all relevant laws, regulations and any applicable guidelines.
8.3. Exclusion of Implied Warranties. SmartSea makes no guarantees, warranties or representations whatsoever about adequacy or fitness for purpose of the Service or otherwise.
8.4. The Customer represents and warrants that it has and will maintain all appropriate consents and will make all necessary disclosures to all owners of Personal Data, sensitive Personal Data, personally identifiable information and/or sensitive personal information in relation to the Customer Data.
8.5. Despite anything in this Agreement to the contrary, SmartSea shall not be obliged to perform the Agreement if:
8.5.1. Customer breaches one or more of its obligations specified herein or if Customer otherwise prevents or impedes the performance of the Agreement;
8.5.2. there is a legislative or regulatory change that, in SmartSea’s opinion, could prevent or impede SmartSea’s ability to perform the Agreement and/or provide the Service; or
8.5.3. the provision of the Service causes a breach or is likely to cause a breach of Privacy Laws.
8.6. Customer will review any information and Data supplied by SmartSea to Customer as part of or as a result of the performance of Service. Customer agrees and acknowledges that it is solely responsible for checking and verifying any such information and Data in accordance with:
8.6.1. Customer’s own experience and independent knowledge;
8.6.2. Customer’s internal security procedures and processes; and
8.6.3. good security practices.
8.7. Where applicable, Customer agrees that SmartSea has no liability or responsibility regarding the use of messages delivered by the Service by the Customer or anyone else.
8.8. Customer is solely responsible and liable for:
8.8.1. anything done by Customer (or anyone else acting on Customer’s behalf or with Customer’s permission) in relation to the Service (including any equipment and/or software provided as part of the Service) or any Data;
8.8.2. the use of and reliance on the Service or any Data; and
8.8.3. decisions taken by, evaluations made by, or any acts or omissions of Customer (or anyone else acting on Customer’s behalf or with Customer’s permission) as a result of the provision of the Service or any Data.
8.9. Customer will not use the Service in violation of any applicable local, national, or international law or regulation.
8.10. The Customer must perform its own PCI DSS security review for all cardholder data environments controlled by the Customer in order to achieve PCI DSS compliance validation for its own end-to-end operations.

9. Limitation of Liability and Legal Terms
9.1. NOTHING IN THIS AGREEMENT OPERATES TO LIMIT OR EXCLUDE A PARTY’S LIABILITY:
9.1.1. THAT CANNOT BE LIMITED OR EXCLUDED BY LAW;
9.1.2. FOR ITS UNLAWFUL OR FRAUDULENT ACTS OR OMISSIONS; OR
9.1.3. IN RESPECT OF THE INDEMNITY UNDER CLAUSE 10 OF THIS AGREEMENT.
9.2. SMARTSEA’S TOTAL AGGREGATE LIABILITY IN RESPECT OF ALL OTHER CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE AGGREGATE SUM PAID BY THE CUSTOMER TO SMARTSEA FOR THE SERVICE IN THE PRIOR 12 MONTH PERIOD.
9.3. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY:
9.3.1. LOSS OR CORRUPTION OF DATA;
9.3.2. LOSS OF ANTICIPATED BUSINESS OPPORTUNITIES, REVENUES, PROFITS OR SAVINGS;
9.3.3. DAMAGE TO GOODWILL OR REPUTATION; OR
9.3.4. INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR ANY OTHER LAW.

10. Indemnities
10.1. If during the provision of the Service a person alleges that the Customer’s use of such Service in accordance with this Agreement is an infringement of that person’s Intellectual Property Rights (such allegation, an “IP Claim”), Customer will without undue delay notify SmartSea in writing of such alleged IP Claim. Following such notification, SmartSea may (at SmartSea’s option):
10.1.1. procure the right for Customer to continue using the Service (or the infringing part of it);
10.1.2. replace or modify that Service (or the infringing part of it) so that it becomes non-infringing; or
10.1.3. repay to Customer any Charges which Customer has paid to SmartSea under this Agreement in respect of the Service (or the infringing part of it) to which the IP Claim relates in the calendar year that the IP Claim arose and terminate the provision of the Service (or the infringing part of it).
10.2. If SmartSea’s actions referred to in clause 10.1 are insufficient to prevent loss or damage occurring to Customer, SmartSea will indemnify Customer against any damages, costs and expenses (including legal expenses) finally awarded against Customer by a court or arbitral tribunal in respect of the IP Claim, provided that Customer:
10.2.1. makes no admission in relation to the IP Claim or any statement that is prejudicial to or otherwise impacts on the defence or settlement of the IP Claim;
10.2.2. authorises SmartSea to conduct the defence or any related settlement of the IP Claim on Customer’ behalf (SmartSea will do so at its expense);
10.2.3. provides SmartSea with all assistance and information reasonably required by SmartSea to enable SmartSea to conduct the defence or settle the IP Claim; and
10.2.4. does all things reasonable to mitigate any damage and loss arising from the IP Claim.
10.3. The indemnity in clause 10.1 will not apply where the IP Claim results from or relates to:
10.3.1. any modification, adaptation or development of a Service or any part thereof (including any supplied equipment or software) not made by or on behalf of SmartSea;
10.3.2. any combination or use of a Service or any part thereof (including any supplied equipment or software) with any item or in a manner not authorised by this Agreement or by SmartSea;
10.3.3. failure by Customer to use the latest version, or a replacement or modification of a Service (or the infringing part of it), which was offered by SmartSea;
10.3.4. any breach by Customer of its obligations under this Agreement;
10.3.5. actions taken by SmartSea at the specific request of Customer (for example complying with specifications provided by Customer); or
10.3.6. any third party-manufactured Equipment or third party proprietary or open source Software or software code, save that SmartSea will provide Customer with the benefit of any indemnity provided to SmartSea from a third party in relation to a third party-manufactured equipment and third party proprietary or open source software or software code.
10.4. The remedies set out in this clause 10 are Customer’s sole and exclusive remedies with respect to IP Claims.
10.5. On an ongoing basis Customer indemnifies SmartSea and holds it harmless against any loss, expense, damage suffered or action, claim or demand by any third party arising from or in relation to:
10.5.1. anything which is the responsibility of Customer, including anything which Customer is responsible for or obliged pursuant to this Agreement;
10.5.2. a claim by any person, including a third party, that use by SmartSea of any Personal Data provided by Customer to SmartSea in accordance with this Agreement infringes the privacy of any person or breaches any Privacy Laws; or
10.5.3. a breach by Customer of any material representation or warranty given by it in this Agreement.

11. Termination & Suspension of Service
11.1. Either party may immediately terminate this Agreement by notice to the other party, if the other party commits any material breach, non-observance or non-performance of a material obligations in this Agreement.
11.2. SmartSea may limit, suspend or cancel a Service at any time with or without prior notice to Customer if, in SmartSea’s sole opinion: there is an event of emergency; the supply or use of a Service is or will become unlawful; any permit or approval required for the Service to operate is or will be withdrawn; there is an actual or threatened claim against the Intellectual Property of the Service; or the provision of a Service is liable to cause or result in death or personal injury or damage to property.
11.3. Without qualifying or limiting clause 11.2, SmartSea may limit or suspend the provision of a Service at any time on fourteen (14) days written notice to Customer if Customer:
11.3.1. fails to pay the Charges or any other amounts due to SmartSea under this Agreement for that Service when due (except where Customer has disputed them in good faith within the specified time period);
11.3.2. breaches any of its obligations under this Agreement; or
11.3.3. becomes Insolvent.
11.4. Where provision of a Service has been limited or suspended by SmartSea due to circumstances referred to in clause 11.3, if such circumstances later cease to exist or are remedied by Customer, then Customer:
11.4.1. may request SmartSea to commence re-supplying (or re-supplying in full) the relevant Service; and
11.4.2. agrees to pay at SmartSea’s option either:
(a) any re-activation and/or installation fees in relation to the commencement of the re-supply (or the re-supply in full) of the Service; or
(b) if the Service has remained configured, provisioned, equipped, installed or similar, all Charges due to SmartSea for the period of service limitation or suspension, save that such Charges shall not exceed the equivalent of four (4) months Charges for the Services, which SmartSea will invoice.
11.5. Each party may terminate this Agreement, on thirty (30) days written notice to the other party, when the Service Periods of all Services have expired.
11.6. Upon conclusion or termination of the Agreement for any reason:
11.6.1. SmartSea shall provide reasonable migration assistance for a period of 30 days at no additional charge;
11.6.2. SmartSea shall destroy, delete or return (at SmartSea’s option) any of the Customer’s Confidential Information relating to the Service; and
11.6.3. Customer shall immediately cease all use of the Service and anything else provided by SmartSea pursuant to this Agreement together with any related documentation and materials (whether specified or not in this Agreement) and destroy, delete or return (at Customer’s option) to SmartSea all such documentation and materials, including all materials and documentation provided with, generated by, or descriptive of the Service including all hardware, object code listings, source code listings, machine code translations, functional specifications, service specifications, user manual, screen dumps or reproductions, software printouts and any SmartSea Confidential Information relating to the Service.
11.7. The following clauses survive termination or expiry of this Agreement: clause 1 (Definitions), clause 4 (Confidentiality), clause 9 (Liability), clause 10 (Indemnities), this clause 11 (Termination), clause 13 (General) and clause 14 (Dispute Resolution), as well as any other clause, which by its nature is intended to survive such termination.

12. Notices
12.1. Any notices or consents given by a party in connection with this Agreement must be made in writing and sent by courier to the other party’s address for notices specified in this Agreement.

13. General
13.1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by the law in force in the place specified in the Particulars.
13.2. Sanctions and Export Laws
13.2.1. Customer acknowledges and agrees that any equipment, the software and any technical data and information provided by SmartSea as part of a Service (“Materials”) as well as a Service itself may be subject to export controls and embargo regulations under international laws, regulations and administrative rulings (“Export Laws”). In the exercise of its rights and the performance of its obligations under this Agreement, Customer agrees that it will comply with Annex B concerning Export Laws and sanctions.
13.3. SmartSea may, at its own discretion, subcontract all or part of the Service.
13.4. A party will not assign, transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Despite the foregoing, SmartSea may novate or transfer this Agreement or assign its rights under this Agreement to a member of the SmartSea Group on notice to Customer. In this instance, Customer consents to such novation, transfer or assignment by SmartSea and agrees to execute all documents necessary to give effect to the assignment or novation by SmartSea referred to in the foregoing sentence.

13.5. Force Majeure
13.5.1. If a party is unable to perform or is delayed in performing an obligation under this Agreement because of a Force Majeure Event, then: that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event; and the party affected by the Force Majeure Event will not be liable for delay or failure to perform any of its obligations in this Agreement (including if applicable in respect of Service Levels).
13.5.2. If a Force Majeure Event occurs, the non-performing party must: promptly give the other party notice of the event and an estimate of the non-performance and delay; take all reasonable steps to overcome the effects of the event (but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and resume compliance as soon as practicable after the event no longer affects the party.
13.5.3. Neither party will have the right to claim or receive damages for any delay or non-performance of obligations by the other party resulting from a Force Majeure Event. If a delay or failure to perform any party’s obligations due to a Force Majeure Event exceeds 30 days, the party not affected by the Force Majeure Event may terminate this Agreement in whole or with respect to the affected Service only (as relevant) with notice to the other party.
13.5.4. The Parties acknowledge that the following events will constitute Force Majeure Events for the purposes of this Agreement, provided all other conditions contained in the definition of Force Majeure Event are also met: any failure of a party to lease or obtain services or equipment necessary to provide or receive the Service, including any local access lines, local access line equipment or other equipment; any failure or non-performance by a telecommunications operator or a third party service provider to Customer.
13.5.5. The parties acknowledge that the delay or withdrawal of any permit or approval that prevents or limits SmartSea’s ability to provide a Service (or element of a Service) and/or Customer’s ability to receive or use such Service (or element of a Service) will constitute a Force Majeure Event for the purposes of this Agreement, provided all other conditions contained in the definition of Force Majeure Event are also met.
13.6. If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction, except if such severance alters the basic nature of this Agreement or is contrary to public policy.
13.7. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties in this respect.
13.8. This Agreement may be executed in counterparts. All counterparts, when taken together, will constitute one instrument.

14. Dispute Resolution
14.1. If a Dispute arises, then the parties will use all reasonable endeavours to settle the dispute as quickly as possible.
14.2. Unless a party has complied with clauses 14.3 to 14.5, that party may not commence court proceedings relating to the Dispute except where that party seeks urgent interim or interlocutory relief.
14.3. Any party claiming that a Dispute has arisen may give a written notice (Dispute Notice) to the other party. The Dispute Notice must:
14.3.1. identify the party’s representative for negotiations relating to the Dispute, being a person with authority to settle the Dispute on behalf of that Party; and
14.3.2. set out succinctly the issues the subject of the Dispute and, with relevant particulars, a description of the circumstances giving rise to the Dispute and the relief sought including, to the extent possible, the amount claimed.
14.4. The recipient of the Dispute Notice must within 14 days of receipt of the Dispute Notice reply in writing to the other party (“Reply”). The Reply must:
14.4.1. identify the recipient’s representative for negotiations relating to the Dispute, being a person with authority to settle the Dispute on behalf of the recipient; and
14.4.2. set out succinctly the recipient’s response to the matters set out in the Dispute Notice and any additional matters the recipient considers relevant.
If the recipient of the Dispute Notice does not provide the above reply within fourteen (14) days, the party claiming that a Dispute has arisen may, at any time thereafter, refer the matter for resolution in accordance with Clause 14.6 below (i.e. the party claiming that a Dispute has arisen may commence Arbitration proceedings).
14.5. The representatives designated under clauses 14.3 and 14.4 will make whatever investigations each considers appropriate and, within 60 days of receipt of the Reply, use their reasonable endeavours to resolve the dispute on a “without prejudice” basis.
14.6. Arbitration. If the Dispute is not resolved within the period of time specified in clause 14.5, then the parties agree to refer and finally resolve the Dispute in front of a single arbitrator under the rules of arbitration of the International Chamber of Commerce (ICC). The parties will request that institution to endeavour to appoint an arbitrator with communications, IT or other appropriate technological expertise. The arbitration will take place in the place specified in the Particulars.

15. Good Faith and Publicity
The Parties shall always act in good faith towards each other and shall not bring the other into disrepute.
Customer grants SmartSea the right to publicize its work with the Customer, and SmartSea will refrain from sharing any proprietary, personal, or confidential information

16. Non-Solicitation
The Parties agree that each invests a substantial sum in the recruiting and maintaining of personnel, including employees and contractors. As such, the parties will not solicit or recruit any active personnel from the other within six months of the expiration or termination of this Agreement. In the event that a company breaches this obligation, the breaching party agrees to pay the non-breaching party damages in an amount equal to 50% of the subject personnel’s annual compensation at the time the employee is solicited or recruited by the breaching party. The foregoing shall not prevent either Party from advertising employment or consulting opportunities or otherwise soliciting such opportunities to the general public and/or from hiring or employing any person who has voluntarily responded to such advertising or solicitations so long as no one person is the intended to target of the advertisement and the former employee is not specifically directed to the advertisement.

17. Governing Law and Jurisdiction
The Parties agree that this Agreement shall be governed by, and construed in accordance with English law; the
Parties further agree that the courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement.

18. Data Protection
Each party shall comply with their respective obligations under applicable data protection laws in relation to any personal data that they process under or in connection with this SOW.

In accordance with applicable data protection laws, the Parties agree that, as required pursuant to the performance of this SOW, they will enter into a data processing agreement to regulate the basis on which the relevant personal data shall be processed.

19. Export Laws and Sanctions
“Sanctions and Export Laws” means trade sanctions, export controls and embargo regulations under international laws, the laws and regulations of Switzerland, the United Kingdom, the United States, the European Union and any other applicable jurisdictions, and administrative rulings of countries or relevant regulating authorities responsible for defining, enacting, and managing compliance with said laws and regulations.
19.1. Customer acknowledges and agrees that any SmartSea materials provided by SmartSea as part of a Service as well as a Service itself and payment routes may be subject to the Sanctions and Export Laws.
19.2. In the exercise of its rights and the performance of its obligations under this Agreement, each Party agrees that it will comply with such applicable Sanctions and Export Laws, and will not, directly or indirectly, export, re-export, sale, supply, transfer (even in-country), divert, release or disclose any SmartSea materials to any person, entity, country or territory prohibited by any Sanctions or Export Laws, such as notably to or for use in Belarus, the Russian Federation, or to any prohibited end-uses and end-users, without first obtaining all authorisation(s), license(s), etc. from the relevant national authorities of the state(s) imposing such restrictions, notably from the U.S. Department of Commerce and/ or from the U.S. Department of Treasury.
19.3. If relevant, the Customer shall communicate such authorisation or export or use license to SmartSea.
19.4. If such Sanctions and Export Laws prevent or limit SmartSea’s ability to provide a Service, SmartSea, may in its sole discretion terminate the relevant contract and the respective service immediately, and SmartSea will notify Customer in writing. In this instance, Customer:
(a) must immediately cease using the Service as of the date of SmartSea’s notice in clause 1.4;
(b) agrees that SmartSea may immediately terminate the relevant Service and the Service Agreement without penalty and
(c) the Customer shall be liable to indemnify SmartSea against any and all claims, losses, damages, costs and fines whatsoever suffered by the SmartSea resulting from the breach of Sanctions and Export Laws as specified above
19.5. If the Sanctions and Export Laws referred to in clause 1.1 change or are replaced in a way that the limitations contained in that clause no longer apply and if the Agreement is not terminated, then Customer:
(a) may request SmartSea to commence re-supplying the relevant Service under this Service Agreement; and
(b) agrees to pay any re-activation and installation fees in relation to the commencement of the re-supply of the Service.
19.6. All contracts entered into with Smartsea should automatically incorporate the “no re-export to Russia or Belarus” clause, in accordance with Article 12g of Regulation (EU) 833/2014 and Article 8g of Regulation (EC) 765/2006 , as amended.
The obligation to include the “no re-export to Russia or Belarus” clause applies to contracts with operators based in any non-EU country, with the exception of the partner countries listed in Annex VIII to Regulation (EU) 833/2014 and Annex Vba to Regulation (EC) 765/2006, as follows: United States of America, Japan, United Kingdom, South Korea, Australia, Canada, New Zealand, Norway, Switzerland, Liechtenstein, and Iceland.
If an Exporter believes that is witnessing sanctions violations or circumvention, it undertakes to report same to their national competent authority or anonymously via the EU whistle-blower tool.
19.7. The Parties further agree, in line with EU requirements: (i) The Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014; (ii) The Customer shall undertake its best efforts to ensure that the purpose of paragraph (i) is not frustrated by any third parties further down the commercial chain, including by possible resellers; (iii) The Customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (i); (iv) Any violation of paragraphs (i), (ii) or (iii) shall constitute a material breach of an essential element of this Agreement, and SmartSea shall be entitled to an immediate termination without penalty; (v) The Customer shall immediately inform SmartSea about any problems in applying paragraphs (i), (ii) or (iii), including any relevant activities by third parties that could frustrate the purpose of paragraph (i); (vi) The Customer shall make available to SmartSea information concerning compliance with the obligations under paragraph (i), (ii) and (iii) within two weeks of the simple request of such information.

End of General Terms and Conditions