Terms and Conditions

LICENCE TERMS

1. Definitions

In these licence terms:

    1. Account means a unique account created for the Subscriber to access the VMS.
    2. Add-On Services means additional services that may be added to the VMS from time to time by agreement between the parties including development work, database implementations, or training workshops, or the assignment of an Agreement from you to a new subscriber.
    3. Agreement means the Contract Schedule signed by Sea-Flux and the Subscriber, these licence terms and the Support Terms.
    4. Applicable Data Protection Laws means the General Data Protection Regulation (EU) 2016/679 (EU GDPR), the United Kingdom Data Protection Act 2018 and the United Kingdom General Data Protection Regulation (UK GDPR) as defined in the United Kingdom Data Protection Act 2018.
    5. Confidential Information means all confidential and proprietary information of a party (Disclosing Party) disclosed to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the contents of the Agreement, the Subscriber Data, the VMS, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that:
    6. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
    7. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; 
    8. was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
    9. is received from a third party without breach of any obligation owed to the Disclosing Party.
    10. Contract Schedule means the Contract Schedule setting out your details and the pricing and related terms applicable to your Subscription.
    11. Force Majeure Event means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, telecommunications or network failures or delays, service or computer failures involving services, hardware, or software not within Sea-Flux’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
    12. GST means goods and services tax as defined in the Goods and Services Tax Act 1985 in New Zealand and the Goods and Services Tax Act 1999 in Australia.
    13. Initial Term means the duration of a Subscription as detailed in the Contract Schedule.
    14. Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, moral rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
    15. Malicious Code means viruses and other harmful or malicious code, files, scripts, agents or programs.
    16. Portal means the VMS website accessible via https://www.sea-flux.com. 
    17. Privacy Policy means our Privacy Policy accessible via https://www.sea-flux.com
    18. Sea-Flux, we, us, and our means Sea-Flux Limited registered in New Zealand (company number 7037265) and Sea-Flux Australia Pty Limited registered in Australia (ACN 655 198 057).
    19. Subscriber, you and your means a natural person or legal entity that has entered into this Agreement and related Subscription to access the VMS.
    20. Subscriber Data means all electronic data or information submitted by the Subscriber and/or Users to or in connection with the VMS or this Agreement.
    21. Subscription means a subscription to the VMS on these licence terms, and “subscribe” shall be construed accordingly.
    22. Support Terms means our Support Terms for the VMS located at [hyperlink].
    23. User means a natural person authorised by the terms of a Subscription to use the VMS, and who has been supplied a user identification and password by the Subscriber or by Sea-Flux.
    24. VMS means the online web-based vessel management software to which a Subscriber has subscribed under this Agreement and made available from the Portal.

2.  Services Provided by Sea-Flux

    1. Sea-Flux shall by way of a grant of a non-sublicensable, non-transferable and non-exclusive license, make the VMS available to the Subscriber and its Users pursuant to this Agreement for the Initial Term.
    2. You agree that your purchase or renewal of a Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Sea-Flux with respect to future functionality or features.
    3. You may authorise Users to use your Subscription, each of whom shall have a separate User identification and password.
    4. A Subscription is effective from the date Sea-Flux provides you with confirmation that the VMS is live.
    5. By subscribing for the VMS, you consent to receiving marketing messages from time to time. You may opt out of receiving any such messages by clicking on the “unsubscribe” link. 
    6. If we undertake any Add-On Services, such Add-On Services will be invoiced separately in accordance with clause 5.11.

3. Sea-Flux Obligations

    1. Sea-Flux shall:
      1. not use, modify, store, disclose or destroy relevant Subscriber Data otherwise than strictly in accordance Sea-Flux’s Privacy Policy the terms of which are hereby incorporated into this Agreement;
      2. use commercially reasonable efforts at its sole discretion (but shall bear no liability whatsoever) to maintain the security and integrity of the VMS and the Subscriber Data; and
      3. provide a 99% uptime target for the VMS during normal business hours, expressed as being 8am-5pm on working days in Auckland, New Zealand; and
      4. have no obligation to ensure that, if you use the VMS, you will comply with any applicable laws or regulations.
    2. Sea-Flux may from time to time amend the VMS, or release or offer new features or services. Such new or amended services or features shall also be subject to the terms of this Agreement.

4. Subscriber Obligations

    1. The Subscriber is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement.
    2. The Subscriber shall:
      1. have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all the Subscriber Data;
      2. use commercially reasonable efforts to prevent unauthorised access to, or use of, the VMS, and notify Sea-Flux promptly of any such unauthorised access or use; 
      3. use the VMS solely for its internal business and/or compliance purposes; and 
      4. comply with all applicable laws.
    3. The Subscriber shall not:
      1. license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the VMS available to any third party, other than to Users or as otherwise contemplated by this Agreement;
      2. store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates any third-party privacy rights;
      3. send or store Malicious Code;
      4. interfere with or disrupt the integrity or performance of the VMS or the data contained therein;
      5. attempt to gain unauthorised access to the VMS or its related systems or networks; or
      6. issue any public or press releases relating to this Agreement without the consent of Sea-Flux.

5. Payments

  1. By purchasing a Subscription, you agree to the terms of this Agreement, and to pay all fees and taxes (if any) specified in the Contract Schedule.
  2. Fees for Subscribers in:
    1. New Zealand/South Pacific are quoted and payable in New Zealand dollars. 
    2. Australia are quoted and payable in Australian dollars. 
    3. United Kingdom are quoted and payable in UK Pounds sterling. 
    4. Europe are quoted and payable in Euros.
    5. Asia, Americas (North and South), Africa and the rest of the world are quoted and payable in United States dollars.
  3. Fees are charged according to the Subscription and Add-On Services purchased by the Subscriber and not actual usage by Users. All fees paid are non-refundable.
  4. Subscription invoices shall either be for monthly or annual amounts (as set out in the Contract Schedule). We issue Subscription invoices in advance with payment due seven days after the date of the invoice. Direct debit payments shall be deducted from your account on the 1st of each month. 
  5. Invoices issued for Add-On Services will be issued on completion of relevant Add-On Services and are due for payment within 7 days.
  6. Subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the Initial Term.
  7. The Subscriber is responsible for maintaining complete and accurate billing and contact information.
  8. Any payment not received from the Subscriber by the due date shall accrue default interest charges at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
  9. The fees do not include any direct or indirect national or foreign taxes, levies, duties or similar governmental assessments of any nature. 
  10. Where Sea-Flux is required to do so, it shall add GST or any other applicable tax or levy to the fees.
  11. Where there are any Add-On Services which have not been priced in the Contract Schedule or otherwise already agreed in writing, Sea-Flux may charge for those Add-On Services in addition to the fees or pricing quoted in the Contract Schedule at the rate charged by Sea-Flux from time to time.
  12. If the Subscriber has failed to pay any amounts due, Sea-Flux may suspend or terminate access to the Portal, and to retain the Subscriber’s Information until any amounts due are paid.
  13. Where a Subscriber has authorised payments of fees to be made by automatic payment by credit or debit card, Sea-Flux may continue to deduct all amounts due and payable. You must pay all bank transfer and foreign exchange fees so that Sea-Flux receives the full amount set out in our invoice.

6. Intellectual Property and Subscriber Data

    1. Sea-Flux reserves all rights, title and interest in and to the VMS, including all related Intellectual Property Rights whether developed before or after the Commencement Date. . No rights are granted to the Subscriber other than as expressly set out in the Agreement.
    2. The Subscriber shall not:
      1. modify, copy or create derivative works based on the VMS
      2. copy or mirror any content forming part of the VMS, other than on the Subscriber’s own intranets or otherwise for its own internal business purposes;
      3. reverse engineer the VMS; or
      4. access the VMS in order to build a competitive product or service (online or otherwise), or copy any ideas, features, functions or graphics of the VMS or Sea-Flux.
    3. As between Sea-Flux and the Subscriber, the Subscriber exclusively owns all rights, title and interest in and to all the Subscriber Data.
    4. The Subscriber grants Sea-Flux an irrevocable, royalty-free, sub-licensable, transferable and perpetual license to use the Subscriber Data for any purpose associated with the provision of the VMS, subject to clauses 7 and 8, and Sea-Flux’s Privacy Policy.

7. Privacy 

    1. If the processing of Subscriber Data is covered by the New Zealand Privacy Act 2020, the parties agree to comply with the Privacy Act 2020 in the collection, use, disclosure, and management of personal information. 
    2. Sea-Flux shall implement and maintain appropriate technical and organisational measures to protect personal information against unauthorised or unlawful processing, accidental loss, destruction, or damage.

8. General Data Protection Regulation  

    1. This clause 8 applies in relation to Subscriber Data, where the processing of that Subscriber Data is covered by the EU GDPR, the UK GDPR or other applicable UK data protection laws. 
    2. For the purposes of this clause 8, the terms controller, data subject, personal data, personal data breach, processor and processing shall have the same meaning as set out in Applicable Data Protection Laws. 
    3. The parties acknowledge that, for the purposes of the Applicable Data Protection Laws, Sea-Flux is a processor and the Subscriber is a controller in respect of the personal data processing activities set out at Schedule 1. 
    4. The Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Subscriber Personal Data to Sea-Flux for the duration and purposes of this Agreement. The Subscriber acknowledges that it determines what, if any, Personal Data it provides to Sea-Flux for the purposes of delivering the services.  
    5. Sea-Flux shall, in relation to Subscriber personal data: 
      1. process the Subscriber personal data only in accordance with the Subscriber’s documented instructions for the purposes set out at Schedule 1. Sea-Flux shall inform the Subscriber if, in its opinion, the instructions of the Subscriber infringe Applicable Data Protection Laws;
      2. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Subscriber Personal Data and against accidental loss or destruction of, or damage to, Subscriber Personal Data, having regard to the state of technological development and the cost of implementing any measures;
      3. ensure that its personnel engaged to process Subscriber personal data are subject to appropriate obligations of confidentiality; 
      4. assist the Subscriber, insofar as this is possible (taking into account the nature of the processing and the information available to Sea-flux), and at the Subscriber’s cost and written request, in responding to any request from a data subject and in ensuring the Subscriber compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. notify the Subscriber without undue delay on becoming aware of a personal data breach involving the Subscriber Personal Data;
      6. at the written direction of the Subscriber, delete or return Subscriber Personal Data and copies thereof to the Subscriber on termination of the Agreement unless the Supplier is required by law to continue to process that Subscriber Personal Data. For the avoidance of doubt, this clause 8 does not apply to information that is in Sea-Flux’s electronic backups (for example for disaster recovery purposes); and
      7. allow for reasonable audits by the Subscriber or the Subscriber’s designated auditor, for the purpose of assessing compliance with this clause 8, subject to reasonable written notice and confidentiality provisions. Such audits shall occur not more frequently than once in a 12-month period and shall be at the Subscriber’s cost. 
    6. The Subscriber provides its prior, general authorisation for Sea-Flux to appoint sub-processors to process the Subscriber Personal Data, provided that Sea-Flux: 
      1. shall ensure that the terms on which it appoints such sub-processors comply with Applicable Data Protection Laws and are consistent with the obligation imposed on Sea-Flux in this clause 8;
      2. shall remain responsible for the acts of any such sub-processor in relation to the Subscriber Personal Data;
      3. shall maintain an updated list of sub-processors in the Sea-Flux Privacy Policy, thereby giving the Subscriber the opportunity to object to new sub-processors, provided that if the Subscriber objects to the changes and cannot demonstrate, to Sea-Flux’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Subscriber shall indemnify Sea-Flux for any losses, damages, costs (including legal fees) and expenses suffered by Sea-Flux in accommodating the objection.
    7. The Subscriber provides its prior, general authorisation for Sea-Flux to: 
      1. process Subscriber personal data in New Zealand and Australia, on the basis that New Zealand and Australia are deemed ‘adequate’ under Applicable Data Protection Laws; 
      2. store Subscriber personal data outside New Zealand and Australia, provided that Sea-Flux shall ensure that all such transfers are undertaken in accordance with Applicable Data Protection Laws.
    8. The Subscriber provides its prior, general authorisation for Sea-Flux to use data and information generated by or relating to the Subscriber’s use of the VMS, including but not limited to usage patterns, preferences, feedback, and performance metrics (Analytics Data). Sea-Flux will use the Analytics Data solely for the purposes of improving, enhancing, and developing the VMS and its features, functionality, and performance, and for creating and providing aggregated and anonymised reports and insights based on the Analytics Data. De-Flux will comply with all Applicable Data Protection Laws in relation to Analytics Data.

9. Confidential Information

      1. The Subscriber shall not disclose or use any Confidential Information of Sea-Flux for any purpose outside the scope of this Agreement, except with Sea-Flux’s prior written permission.
      2. You agree to protect the confidentiality of the Confidential Information of Sea-Flux using all reasonable skill and care.
      3. Where Sea-Flux is compelled by law to disclose any Confidential Information of the Subscriber, such disclosure shall not be a breach of this Agreement. 
      4. If you disclose or use (or threatens to disclose or use) any Confidential Information of Sea-Flux in breach of this Agreement, Sea-Flux shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the parties that damages are an inadequate remedy for such breach.

10. Warranties, Exclusions and Indemnity

    1. Each party represents and warrants that it has the legal power to enter into this Agreement.
    2. Except as expressly provided, Sea-Flux makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. Without limiting the foregoing, Sea-Flux does not warrant that the VMS will meet your requirements or that it will be suitable for any particular purpose.
    3. Sea-Flux may provide links to other websites. Sea-Flux provides no warranty, endorsement or recommendation whatsoever regarding the content in these websites. These links are not monitored, and Sea-Flux has no liability whatsoever in relation to these links or websites.
    4. The Subscriber shall defend, indemnify and hold Sea-Flux harmless against any loss, damage or costs (including legal fees on a solicitor-client basis) incurred in connection with any claims made or brought against Sea-Flux by any party alleging that the Subscriber Data infringes the intellectual property rights of, or has otherwise harmed, any party.
    5. You warrant and represent that you are acquiring the VMS for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction including but not limited to the Fair Trading Act 1986 and the Consumer Guarantees Act 1993, do not apply to the supply of any products or services by Sea-Flux.

11. Liability

    1. Sea-Flux’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other category of liability, shall not exceed the amounts actually paid by and due from the Subscriber in the two (2) calendar months preceding the incident giving rise to the liability.
    2. In no event shall Sea-Flux have any liability for any lost profits or for any indirect, special, incidental, punitive, or consequential losses or damages however caused and, whether in contract, tort or under any other category of liability, whether or not Sea-Flux has been made aware of the possibility of such damages or liability.
    3. Without derogating from the foregoing, Sea-Flux shall have no liability for any failure to:
      1. store or manage any Subscriber Data or Confidential Information; 
      2. notify the Subscriber of key dates in the management of any vessel or personnel; 
      3. provide access to the Subscriber Data or Confidential Information; 
      4. store statutory records for the Subscriber.

12. Term

      1. This Agreement commences on the Commencement Date set out in the Contract Schedule and will remain in effect for the Initial Term. If the Agreement is not terminated by either party giving 60 days’ notice prior to the end of the Initial Term, it shall automatically continue until either party terminates the Agreement by two months written notice.
      2. Where an Initial Term is not specified in the Contract Schedule, the Subscription shall be monthly until this Agreement is terminated (Monthly Subscription).
      3. You may end a Monthly Subscription at any time by writing to Sea-Flux. If you end your Monthly Subscription in this way, you will be able to continue to use the VMS until your prepaid period expires, after which time your Monthly Subscription will end.
      4. Sea-Flux will not provide any refunds for any Subscriptions that are ended early for any reason.
      5. Sea-Flux may for any reason, cancel, remove or attenuate the VMS for temporary periods or indefinitely without notice to you.
      6. Termination shall not relieve the Subscriber of the obligation to pay any fees accrued or payable to Sea-Flux prior to the effective date of termination.
      7. Termination for Breach or Insolvency: Either party may terminate this Agreement immediately upon giving written notice to the other party if the other party: (a) commits a material breach of any of its obligations under this Agreement (including the incorporated Licence Terms) and fails to remedy that breach within thirty (30) days of receiving written notice requiring it to do so; or (b) becomes insolvent, goes into liquidation, has a receiver, liquidator, or statutory manager appointed over any of its assets, or ceases to carry on business. Upon termination of this Agreement for any reason, all access to the Sea-Flux platform shall cease, and the Licensee shall immediately pay all fees and charges accrued up to the date of termination. Termination does not affect any rights or remedies that a party may have accrued prior to the date of termination.

13. General

    1. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    2. Any notices given under this Agreement will be deemed to have been properly given if delivered personally or sent by post, postage prepaid, or email transmission to the registered office of Sea-Flux or the Subscriber as the case may be. Such notices will be deemed to have been given:
      1. if by delivery, when delivered;
      2. if by email transmission, when dispatched; and 
      3. if by post, on the day on which in the ordinary course of post it would be delivered.
    3. Notices to Sea-Flux may be sent to safety@sea-flux.com 
    4. Notices to you will be sent to the address that you identified on your account as your contact for notices. 
    5. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
    6. If any provision of this Agreement is held by a court to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
    7. Notwithstanding anything to the contrary, either party may assign this Agreement in its entirety, with the prior written consent of the other party (such consent not to be unreasonably withheld), in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in any other circumstances shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    8. This Agreement shall be governed by New Zealand law, and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
    9. This Agreement, including the Privacy Policy and Contract Schedule constitutes the entire agreement between the parties, and supersedes all prior agreements or representations, written or oral, concerning its subject matter.
    10. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
    11. To the extent of any conflict or inconsistency between these licence terms and the Privacy Policy or Contract Schedule, the terms of the Privacy Policy or Contract Schedule shall prevail.

14. Third-Party Tools

    1. We may provide you with access to optional third-party tools or services (Third-Party Tools) which we neither monitor nor control. The Third-Party Tools are available to you at your option and used at your discretion.
    2. You acknowledge and agree that we provide access to Third-Party Tools “as is” and “as available” without any warranties, representations or endorsement. Sea-Flux shall have no liability whatsoever arising from or relating to your use of Third-Party Tools.
    3. Any use by you of Third-Party Tools is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such Third-Party Tools are provided by the relevant third-party provider(s).
    4. The VMS has the ability to integrate with Third Party Tools. In using data feeds from Third Party Tools you acknowledge that Sea-Flux is not responsible for the accuracy or otherwise of this data, and is not liable in any way for any continuing services provided by any third parties. Sea-Flux does not warrant any aspect of Third Party Tools or data feeds, and does not validate any of the data provided in this way.

15. Schedule 1 – Particulars of Data Processing

The particulars of data processing are as set out in our Privacy Policy available on our website https://sea-flux.com/nz and summarised below:  

Subject matter, nature and purpose of processing
  • We process personal data for the purposes of providing Sea-Flux services. We may also process personal information for the following of processing.  Conducting market research surveys to improve the VMS, targeting or customising our marketing and advertising, providing you with information about the operation and security of our websites, contacting you to advise you of changes to the licence terms, Support Terms, services or new products or promotions.
Duration of processing
  • For the duration of our contract with you, and for any required periods after that duration.
Types of personal data
  • If you make contact with us we are likely to hold basic information, such as: Your name and contact details, Your address, Meeting
  • notes from our conversations with you, Survey results and responses, when you participate in any of our surveys, Any correspondence with Sea-Flux, Website activity, Transaction history, Size of your vessel and fleet, Your industry, along with any other information you choose to provide to Sea-Flux. Once you become a customer, there is additional information that we will hold, including Name and positions and contact information of key members of your team, Payment method, Bank details (last 5 digits) and name of bank (if paying by GoCardless). The VMS include the functionality to hold personal information relating to crew for the purposes of crew management and safety. This information might include the following: Name, Position, DOB, Inducted date, Email, Phone number, Address, Passport details, Next of Kin, Next of kin relationship, Next of Kin contact, medical doctor, Doctor contact, medical issues, Current medication, Previous injuries/surgeries, Allergies, Blood type, along with any other information you choose to provide to Sea-Flux.
Categories of data subject
  • Subscriber owners, employees and associated individuals (e.g. next of kin).

Review

UpdatedChanges madeChanges made by
V1 – 07.12.23Full review and minor editsPhil, Tai
V2 – 01.02.24Added 6.5,6.6, 6.7 to this contract to reflect the template and forms responsibility and liability.Phil, Tai
V3 – 13.05.24Full review and minor edits by LawyerLawyer, Phil, Tai
V4 – 10.10.24Added Clause 8 and 9 to reflect Privacy Act 2020 and GDPR requirementsLawyer
V5 – 14.10.24Updated section 5.2. Added to SLA’sTai
V6 – 18.10.24Updated section Schedule 1 link for privacy policyTai
V7 – 10.07.25Branding updateTai
V8 -16.03.26Full review by external lawyerLegal, Phil
V9 – 1.04.26Update formatting Tai