General Website Terms for Users
These Terms and Conditions apply to access to the website for the Use of Provider's DUKC system.
Please note that all Users should be aware of these General Website Terms and that access to the DUKC (being the DUKC® System licensed by OMC International Pty Ltd ("OMC") is strictly conditional upon User's acceptance of these General Website User Terms.
In these General Website Terms, "Provider" means OMC and includes where the context requires or permits (whether expressly stated or not), any Regulatory Authority responsible for the Waters and any Relevant Third Party; "User" means the User making access to this website but where User is not the actual Owner or Operator of any vessel for which access to this website is required, then "User" means and includes that party, any vehicle traffic service operations, schedulers, port users and the vessel's Master and any Pilot engaged therewith; "Regulatory Authority" any Government or other Authority vested with any legal or administrative responsibility in respect of the through which the vessel will transit or berth "Relevant Third Party" means the Provider's affiliates, associates, servants or agents; and, "DUKC System" means the DUKC® System supplied by OMC from time to time.
Use of this Website
These terms apply to the use by User of this website for access by User to the DUKC System provided by Provider. User acknowledges that the use of, and access to this website, is for the purpose of User obtaining information (including metocean information), data, text, images or other material (collectively, "Information") in relation to proposed passage plans, vessel draft information, tidal information, mooring and fender information, berthing information, wave information and other associated information so as to assist User in planning the transit of a vessel or the berthing of a vessel in the Waters and for no other purpose whatsoever and User acknowledges that the use of this website and access to the DUKC System is for the sole purpose of obtaining such Information for such purposes and as an aid to navigation or berthing of vessels including proposed passage plans, vessel draft and loading information, mooring and fender information, tidal information, wave information and associated information so as to assist User in planning for the transit or berthing of a vessel (collectively, "Purpose") and for no other purpose whatsoever.
This website is made available by Provider and any User accessing or browsing this website or downloading or using any Information available from, via or generated on, posted or uploaded to this website (collectively, "Content") or otherwise requesting, using or receiving any services or facilities ("Services") via this website for the Purpose and may only do so only and strictly subject to:
(1) the terms and conditions set out below and/or contained herein; and,
(2) User's undertaking to comply with all applicable laws, including with respect to privacy,
(collectively, "General Website Terms").
Access to or use of this website or any Content, Information or Services via this website by a User shall be deemed to constitute conclusive acceptance by User of, and agreement by User to, the General Website Terms.
If User accesses this website or receives or uses Content, Information or Services on behalf of any other party (including any body corporate), that party shall also be bound by the General Website Terms as if that party were a User. Where User is not the actual Owner or Operator of any vessel for which access to this website is required, User warrants and represents that it has the actual authority of such party to bind that party (and the vessel's Master and any Pilot engaged by or on behalf of User) to these General Website Terms.
Status of General Website Terms
These General Website Terms shall not affect or form part of the terms of any other contract with Provider. For the avoidance of doubt, all information provided by Provider through this website is provided for the sole use and information of User for the Purpose and for no other purpose or reason whatsoever.
Ownership of all copyrights, database rights, patents, trade or service marks, product names or design rights (whether registered or unregistered), trade secrets and confidential information and any other intellectual property or similar rights existing in any territory now or in future (collectively, "Intellectual Property Rights") and similar rights and interests in all material and information appearing on this website and all Content or otherwise relating to the structure of this website and the provision of Content, Information or Services by Provider via this website, solely vests in Provider.
User may only access those areas of this website which it is authorized to access. User acknowledges that it is solely entitled to access to this website, Content, Information or Services for the Purpose and that it is entitled to print-out and retain and use for the Purpose such Content, Information or Services as are provided but that User shall have no right or entitlement (apart from the provision of any User Materials referred to in clause 3.3, below) to post, upload, temporarily store on or transmit through any information, materials or Content obtained on this website other than for the Purpose. All other copying, downloading, reproduction, distribution, adaptation, modification or communication of the website or any Content or Information is prohibited except with the express written permission of the Provider. Except to the extent that this right cannot legally be excluded, User must not disassemble, decompile or reverse engineer any part of the website or the DUKC System.
User shall procure the waiver of any moral rights in any information, data or other content or materials posted or uploaded by User to this website (collectively, "User Materials"). User hereby grants Provider an irrevocable, worldwide, non-exclusive, royalty free right to use any User Materials for all reasonable business purposes, including without limitation copying, amending, incorporating in other materials, publishing and Provider may make such use of such User Materials as it deems to be appropriate for the Purpose.
Any User Materials shall generally only be used by Provider either for the purposes of providing general Content, Information or Services to that User or for the purpose of providing Content, Information or Services in respect of the vessel to which such User Materials relate. The User warrants to Provider the correctness and accuracy of all such User Materials and that it shall maintain, revise and up-date such User Materials as and when necessary and that in no event shall Provider nor any Relevant Third Party be liable or responsible to User as a direct or indirect consequence of Provider relying on any such User Materials.
Errors and Omissions
Provider will use reasonable endeavors to ensure that the Content, Information or Services as at the date they are provided accurately reflects either;
(1) the relevant part of Provider's records held or predicted by Provider via the DUKC System; or,
(2) information received from a party other than Provider.
Provider does not warrant that any Content, Information or Services is accurate, sufficient, error free, complete or up to date at the time it is accessed. User should make its own enquiries to satisfy itself of the accuracy and completeness of any Content, Information or Services before relying on it for the Purpose. If any Content, Information or Services is labeled as indicative only, Provider makes no warranties at all in relation to its quality, accuracy, completeness or timeliness.
Except as set out in the General Website Terms including clause 8.6, neither Provider nor any Relevant Third Party shall have any liability whatsoever for breach of any implied warranty, term or condition that might otherwise apply including pursuant to any law of the Commonwealth or any State or any Territory, including without limitation in relation to the operation, quality or fitness for User's Purpose in accessing this website or any Content, Information or Services, reliance on any User Material or the use of reasonable skill and care.
User is responsible for the accuracy and completeness of any User Materials. User shall ensure User Materials do not infringe any Intellectual Property Right or other right of any third party and are not defamatory, unlawful, immoral or otherwise likely to breach or infringe any right or requirement or to give rise to any claim for loss or damage by any third party. User shall indemnify and hold harmless Provider and any Relevant Third Party against any claims, losses, actions, proceedings, damage or other liabilities whatsoever (including damages or compensation paid by them to compromise or settle a claim), and all legal costs or other expenses, suffered by Provider or any Relevant Third Party as a result of any actual or potential breach by User of its obligations under this clause 4.3.
This website may contain certain links or references to websites operated by third parties. Provider makes no warranties or representations whatsoever regarding any third party website which User may access through this website or which User may use or access to enable access to or use of this website and any of its Content, Information or Services. Any such website is wholly separate and independent from this website and Provider does not have any control over the content or operation of any such website and does not endorse any third party website, and does not accept any responsibility for the existence, operation, content or use of such website.
User shall not permit or endeavor to permit any third party aggregator of information to access or retrieve information from this website on User's behalf. User undertakes that it will not endeavor to run software programs, scripts, macros or similar materials against or in relation to any part of this website as these could endanger, compromise or hamper the stability and operation of this website or infringe rights in or relating to this website or any Content appearing on it.
User agrees to comply forthwith with any reasonable instructions that Provider may issue from time to time regarding website security.
User must ensure that it does not do anything during or after any access to or use of this website, Content, Information or Services which might result in the security of this website, or the systems or security of Provider or any other users of this website, or any other user's customers or associated or affiliated companies, being compromised.
Provider shall take all reasonable precautions to ensure that communications through this website and its own systems are not affected by computer viruses or other destructive or disruptive components or software, and to ensure no such components or software are transmitted to or via this website. User undertakes that it shall each take all reasonable precautions to ensure that communications through this website and its own systems are not affected by computer viruses or other destructive or disruptive components or software, and to ensure no such components or software (including in any User Materials) are transmitted to or via this website and shall indemnify and keep indemnified Provider from and against all consequences thereof.
User acknowledges and agrees as follows:
(1) it is qualified and trained in using the DUKC System and this website and will ensure that any person that uses this website or the DUKC System will be trained and qualified to use the website and the DUKC System;
(2) it will communicate, represent or distribute any Content or Information in an unaltered and unabridged form;
(3) it will not alter, modify, edit any Content or Information obtained from the website or the DUKC System or represent, communicate or distribute the Content or Information in a manner which is likely to misrepresent or mislead;
(4) any disclaimers, warnings, qualifications or notices produced with the Content or Information will not be altered, abridged or removed.
User acknowledges and agrees that the DUKC System, this website, the Content, Information and Services are aids to assist in the navigation and berthing of a vessel. They are not a substitute for competent human intervention and discretionary thinking. User agrees:
(1) User will be responsible for entering information into the website and DUKC System accurately and completely;
(2) User will be responsible for reading Information and Content displayed or made available on the website or through the DUKC System accurately;
(3) User and any person acting on User's behalf will be qualified and trained and be responsible for using the Content, Information and DUKC System accurately; and
(4) User will be responsible for decisions made by User using the Information, Content or DUKC System.
Subject to clauses 8.8 and 8.6, the total liability of Provider including any Relevant Third Party to User and any person acting on User's behalf, howsoever arising out of or in connection with the General Website Terms, this website, Content, Information or Services (including in relation to any negligence whatsoever and howsoever arising, including any negligence of Provider or of any Relevant Third Party) shall, in aggregate, in respect of any claim, or series of connected claims arising out of the same cause in any calendar year, not exceed A$1,000.00 (Australian Dollars One Thousand) howsoever arising.
Subject to clause 8.6, User undertakes and shall ensure that no claims for more than the aggregate limit of liability set out in clause 8.1 are brought against Provider or any Relevant Third Party and in giving this undertaking User does so not only on its own behalf but also on behalf of any such person specified in clause 1.3 above, other than User, and if notwithstanding the foregoing any such claims are brought, that User shall indemnify and keep indemnified Provider and any such Relevant Third Party (as the case may be) from and against all consequences thereof.
User is advised to obtain, if it considers appropriate, insurance cover at its cost, in particular for any loss exceeding the limit set out in clause 8.1 above, whether such losses are sustained by User or by any person specified in clause 1.3 above, other than User.
Subject to clause 8.6, Provider excludes to the maximum extent permitted by law, any express or implied warranty in respect of the or in connection with the General Website Terms and/or this website, Content, Information, Services or DUKC System.
Subject to clause 8.6 except as set out in the General Website Terms, neither Provider nor any Relevant Third Party shall have any liability whatsoever in respect of the use of the Content, Information or Services or this website, howsoever arising.
Nothing in the General Website Terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on the User by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth.) or any other applicable law that cannot be excluded, restricted or modified by agreement.
To the fullest extent permitted by law, the liability of Provider for a breach of a non-excludable condition or warranty referred to in clause 8.6 is limited, at Provider's option, to:
(1) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; or
(2) in the case of services, any one of the supplying of the services again; or the payment of the cost of having the services supplied again.
Subject to clause 8.6, despite any other provision of these General Website Terms, Provider will have no liability to User arising from:
(1) use of the website, Content, Information, Services or the DUKC System by a person who is not trained or qualified to use the website, Content, Information, Services or the DUKC System;
(2) modification, alteration or abridgement of any Content or Information obtained from this website or the DUKC System in a manner not authorized by these General Website Terms;
(3) use of the DUKC System, Content, Information, Services or the website in a manner which is not authorized by Provider; or for a purpose not reasonably contemplated by these General Website Terms; or
(4) operator error.
Use of this website or of the Content, Information or Services may be subject to certain legal or regulatory requirements in particular jurisdictions. User may only access or use this website, Content, Information or Services to the extent such access or use is permitted in the jurisdiction in which it accesses or uses this website or accesses any Content, Information or Services.
Neither Provider nor any Relevant Third Party shall be liable for:
(1) Any loss of profit or anticipated profit, loss of business, loss of business opportunity, loss of reputation, loss of revenue, loss of data, or any indirect, or consequential losses in connection with the General Website Terms (including in relation to any negligence whatsoever and howsoever arising, including through the negligence); or,
(2) any failure or delay in performing its obligations under the General Website terms caused in whole or in part by the action of any government or governmental agency, natural occurrence, law or regulation (or any change in the interpretation thereof), injunction, restriction, sanction, any industrial action whatsoever (whether involving its staff or not), war, terrorist action, equipment failure, interruption to power supplies or telecommunications networks or anything else whatsoever occurring or arising in circumstances beyond their reasonable control.
The General Website Terms supersede all previous agreements, communications, representations and discussions between the parties relating to this website. No party will have a right of action against Provider nor against any Relevant Third Party arising from any previous agreement, communication, representation and discussion in respect of this website (except in the case of fraudulent misrepresentation), and neither party has relied on any terms, warranties, representations or conditions other than those expressly stated in the General Website Terms. No modification or waiver of the General Website Terms shall be binding on Provider unless it is in writing and agreed by an authorized representative of Provider.
References in the General Website Terms to in writing' or written' include communication by email or other electronic form. References in the General Website Terms to the singular include the plural and vice versa and any reference to the word 'including' is without limitation as to its generality. Any reference to any Act, Marine Order, regulation, direction or the like shall include any amendment, modification, re-enactment or restatement thereof for like purposes made from time to time.
Each of the provisions of the General Website Terms is severable from the others and if one or more of them becomes void, illegal or unenforceable, the remainder will not be affected in any way.
All rights under the General Website Terms may be exercised as often as necessary and are cumulative and not exclusive of its rights under any applicable law. Any delay in the exercise or non-exercise of any such right is not a waiver of that right.
OMC and each Relevant Third Party shall have the benefit of all provisions of the General Website Terms which are expressed to be for their benefit, as well as the law and jurisdiction clause. In entering into the General Website Terms, Provider does so (to the extent of such provisions) not only on its own behalf but also as agent and trustee for OMC and all such Relevant Third Parties.
Subject to clause 2, Provider may at any time and without notice or liability change, improve or remove any Content, Information or Services available via this website, or the General Website Terms and the same shall be and become effective upon being posted on this website other than in respect of any amendment, modification, re-enactment or restatement of any Act, Marine Order regulation, direction or the like which shall automatically take effect upon the same becoming effective or operative in law.
Provider may assist or co-operate with authorities in any jurisdiction in relation to any direction or request to disclose personal or other information regarding any User or the use of this website, Content, Information or Services without reference to the User.
User acknowledges and undertakes that it shall comply with all applicable laws and requirements of any Regulatory Authority incidental or related to the use of this website and the Purpose, made pursuant to the Navigation Act 1912 (Cth) (or further or other Marine Orders relevant to the Purpose, as applicable from time to time) and compliance in all respects with the requirements of Part IIIA of the Navigation Act 1912 (Cth).
User admits and acknowledges that access to this website and the use of any Content, Information or Services for the Purpose, whether provided by Provider via this website or by access to the DUKC System and provided to any Pilot engaged for or on behalf of User that such pilot who has the conduct of the vessel is subject to the authority of the master of the vessel and that the master of the vessel is not relieved from responsibility for the conduct and navigation of the vessel by reason only of the vessel being under pilotage and despite any law of the Commonwealth or of a State or Territory, the Owner or master of any vessel navigating under circumstances in which pilotage is compulsory under such a law is answerable for any loss or damage caused by the vessel, or by a fault in the navigation of the vessel, in the same manner as the Owner or master would be if pilotage were not compulsory to the express exclusion of any rights of recourse whatsoever and howsoever arising against Provider or any Relevant Third Party or Regulatory Authority.
User admits and acknowledges that access to this website and the use of any Content, Information or Services, whether provided by Provider via this website or by access to the DUKC System is for the advice and information only of User for the Purpose (including where User is not the actual Owner or Operator of any vessel, the vessel's Master and any Pilot engaged by or on behalf of User and to the extent that Provider provides any Content, Information or Services, User shall be and remain solely responsible for the safe management, navigation and berthing of the vessel to the express exclusion of any rights of recourse whatsoever against Provider or any Relevant Third Party or any Regulatory Authority and the Master of any vessel is not relieved from his responsibility for the conduct and navigation of the vessel because the Content, Information or Services provided solely for the Purpose may constitute in whole or in part vessel traffic management arrangements as provided for in the Navigation Act, 1912 (Cth).
Further and despite any law of the Commonwealth or of a State or Territory, User, including the Owner or master of a ship navigating in circumstances where vessel traffic service arrangements are required to be complied with under such a law, is answerable for any loss or damage caused by the vessel, or by a fault in the navigation of the vessel, in the same manner as the Owner or master would be if those vessel traffic service arrangements were not required to be complied with.
Further and despite any law of the Commonwealth or of a State or Territory, User, including the Owner or master of a ship navigating in circumstances where vessel traffic management arrangements are required to be complied with under such a law, is answerable for any loss or damage caused by the vessel, or by a fault in the navigation of the vessel, in the same manner as the Owner or master would be if those vessel traffic management arrangements were not required to be complied with.
For the purposes of this clause 9.12, any reference to a vessel traffic management arrangement is a reference to any measures that affect a vessel's navigation or implemented under a vessel traffic service by a person not on board the ship (and includes any navigational service implemented under a law of the Commonwealth or a State or Territory in accordance with the guidelines for vessel traffic services adopted by the International Maritime Organization ("IMO") on 27 November 1997 to improve the safety and efficiency of vessel traffic and to protect the environment, and, where the context requires, any reference to the said guidelines shall include any amendments, enhancements or revisions adopted by the IMO from time to time).
These General Website Terms are subject to the laws applying in the State of Victoria, Australia and any dispute, claim, matter of construction or interpretation arising out of or relating to this website, including the General Website Terms, shall be subject to the exclusive jurisdiction of the Courts of that State.