Covid-19 Information Line Agreement
FOR INDIVIDUAL SHIPS
A. Vikand provides medical consultation in the maritime industry and, along with Inmarsat and FrontM, is providing an information line regarding the Covid-19 outbreak worldwide.
B. The Vessel Owner/Operator wishes to utilize the services of Vikand, Inmarsat and FrontM to receive information about Covid-19.
1. VIKAND OBLIGATIONS
1.1. Vikand will provide information services to the Vessel regarding Covid-19, including general procedures related to methods of sanitization, methods to reduce the spread of the virus, procedures for dealing with suspected and actual cases of Covid-19 onboard and general procedures for dealing with the removal of a person with a confirmed case of Covid-19 to land based medical care. Vikand will not undertake to assist in the provision of medical supplies to the Customers, contact any supplier, agency, service or authority on behalf of any Customer or do anything other than provide advice and consultation regarding general procedures the Customer can take regarding Covid-19.
1.2. In providing the information services, Vikand may use any means of communication that it deems advisable to communicate necessary information to the Customers, including, but not limited to, live Customer telephone contact, recorded messages, referral to internet sites, emailed communication and referral to YouTube videos.
1.3. Vikand will provide these services free of charge to Inmarsat and its Customers during the months of April, May and June 2020.
1.4. Vikand will not provide any medical advice other than publicized, general information. The Owner/Operator hereby agrees that the information provided will be based upon the currently available and published information regarding Covid-19, that no specific medical advice will be given and that neither Inmarsat, Front M nor Vikand provides any warranty whatsoever with regard to the information or its suitability for any particular purpose, including any warranty that the information is the latest currently available information or that the information is suitable or applicable to any particular Customer. The Customer’s use of the information is the responsibility of the Customer, at the Customer’s own risk.
2. SHIP’S OBLIGATIONS
2.1. The Owner/Operator agrees that the Vessel will be informed of the Covid-19 Information Service and the limitations of this service to the items listed in 1.1, above, and that specific medical advice is not a part of this service.
2.2. The Owner/Operator agrees that calls to the Covid-19 Information line will be made only by an officer of the Vessel.
2.3. The Owner/Operator agrees that the Vessel will be instructed to keep calls to about ten (10) minutes in length so that all Vessels have access to the service; to receive the information as general advice only and not to deviate from the Vessel’s medical and emergency protocols based upon the information without permission of the Owner/Operator.
2.4. The Owner/Operator agrees that, in the event the medical professional providing the advice shall recommend that a particular situation be referred to the Owner/Operator, the Vessel’s Third Party medical provider or any other person or agency, that it is the Vessel’s responsibility to promptly contact such party as such contact is outside of the scope of services offered by Vikand herein.
2.5. The Owner/Operator agrees that Vikand has no obligation to follow up on any situation or to call the Vessel back for any reason, but, may do so, and, if it does so, it does not create any further obligation or expectation that additional follow up or calls will be made. It is the responsibility of the Vessel to keep in touch with Vikand for information.
2.6. The Owner/Operator will make the Vessel aware of the limitations of this service and will publish to the Vessel the contents of paragraph 1.4, above.
3. This Agreement is subject to the terms and conditions contained in the General Terms and Conditions of Covid-19 Information Line Agreement For Individual Ships which are incorporated herein by reference and made a part hereof.
General Terms and Conditions of Covid-19 Information Line Agreement For Individual Ships
1. GENERAL TERMS
a. Entire Agreement
This Agreement contains the entire agreement of Vikand and Owner/Operator with respect to the subject matter hereof, and no representations, warranties, inducements, promises, dealings, understandings, policies, or agreements, oral or otherwise, between the Parties not embodied in this Agreement shall be of any force or effect. No oral or written agreements, statements, course of dealing, trade practice, usage, or prior agreements, other than the express terms contained herein, shall govern the rights, obligations, and liabilities of the Parties.
The failure of either Party to follow, enforce, abide by, or insist upon strict compliance with the terms of this Agreement shall not constitute a waiver of nor diminish the enforceability of any of the provisions herein.
The terms of this Agreement may not be waived, altered, modified, amended, or supplemented in any manner whatsoever except by a written document duly executed by all of the Parties hereto.
Any notice, demand, request, or other communication required or permitted to be given by either party in connection with this contract must be in writing and served either by: (1) depositing the notice in the mail, full postage prepaid, certified or registered with return receipt requested; (2) delivering the same by an internationally recognized air courier service, full delivery cost paid; (3) delivering the same in person; or (4) sending a fax of the same, confirming with a copy thereof delivered either by mail or air courier service.
If to Owner/Operator: 30 Cecil Street Prudential Towers #14-01 Singapore 049712
If to Vikand: Peter Hult, 1001 S. Andrews Ave., Suite 120. Ft. Lauderdale, Florida 33316
e. Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of England.
Owner/Operator and Vikand acknowledge that as a result of the performance of their respective responsibilities under this Agreement, Vikand will obtain access to confidential and proprietary information of Owner/Operator (to include for the purposes of this Confidentiality clause, confidential information about Owner/Operator's crew) and Owner/Operator may obtain access to confidential and proprietary information of Vikand (all such information, with respect to each party, together with the terms and conditions of this Agreement, shall be referred to herein as the "Confidential Information"). All Confidential Information of the other Party shall be deemed to be confidential and proprietary and may not be used by the receiving Party for its own purposes not related to this Agreement or disclosed to any third party, including any subsidiary, affiliate or partner, without the prior written agreement of Owner/Operator and Vikand. For purposes of this section, the respective parent company of Owner/Operator will not be deemed a third party. Owner/Operator and Vikand shall not use any of the other Party's Confidential Information for any purpose other than to perform their respective responsibilities under this Agreement.
Owner/Operator and Vikand shall each take the same measures to protect the Confidential Information of the other Party received by it as it prudentially should take with respect to its own Confidential Information, including instructing its employees, vendors, agents, and independent contractors of the foregoing and requiring them to be bound by appropriate agreements.
Breach of this Section shall be cause for immediate termination of this Agreement and the Parties may seek equitable relief. This Section shall not apply to Confidential Information to the extent such information: (i) is already known to the receiving party free of any restriction at the time it is obtained from the disclosing party; (ii) is information the receiving party can show was properly in its possession prior to receipt from the disclosing party; (iii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iv) is or becomes published or otherwise generally available to the public through no wrongful act of any Party; (v) is independently developed by one Party without reference to any Confidential Information of the other; or (vi) is required to be disclosed pursuant to a requirement of a court of competent jurisdiction, governmental agency or law so long as the Parties provide each other with timely written prior notice of such requirements.
Each Party agrees to defend, indemnify and hold harmless the other, its directors, officers, agents and employees, from and against (i) any and all liabilities, claims, suits, damages and judgments suffered or incurred by the indemnified party as well as all costs and expenses awarded to a third party and (ii) reasonable attorney's fees incurred by the indemnified Party, in any suit or proceeding arising out of or in connection with (a) the indemnifying Party's performance or its failure to perform as contemplated herein, (b) the indemnifying Party's negligence, acts or omission in connection with this Agreement or (c) the indemnifying Party's failure to comply with applicable laws, including, but not limited to, anti-bribery, anti-corruption and privacy.
The Parties agree that if any provision of this Agreement is held legally unenforceable, the unenforceable provisions shall be deemed severed from the Agreement and all remaining provisions of this Agreement shall remain valid and in full force and effect.
i. Assignment and Successors
This Agreement shall remain valid and enforceable between Vikand and Owner/Operator, and their assigns and successors, during the Term of the Agreement.
Owner/Operator may assign this Agreement to another of its affiliated companies upon written notice to Vikand. The notice shall state the effective date of such assignment, that the Assignor transfers all of its right, title, interest and obligations under this Agreement to the Assignee and that the Assignee accepts such assignment and agrees to be bound by the terms and conditions of this Agreement. Both the Assignor and Assignee shall sign the notice. The Assignor shall be liable for obligations under this Agreement until midnight the date prior to the effective date and the Assignee shall be liable for obligations under this Agreement as from such date.
j. Relationship of the Parties
During the term of the Agreement, the Parties shall have the relationship of independent contractors. Owner/Operator shall not have, and shall not represent that it has, any power, right, or authority to bind Vikand or to assume or create any obligation or responsibility, express or implied, on behalf of Vikand. The Parties to this Agreement do not intend to create any third party beneficiaries arising from this Agreement or the relationship between Owner/Operator and Vikand.
k. Limitation of Liability
In no event shall either Party be liable to the other Party for any lost or prospective profits or any other special, punitive, exemplary, consequential, incidental or indirect loss or damage, whether based in contract, warranty, indemnity, negligence, strict liability or other tort or otherwise, under or with respect to this Contract or from any failure of performance related hereto regardless of the cause.
2. DISPUTE RESOLUTION
a. Arbitration and Venue
Vikand and Owner/Operator agree that the exclusive means of resolving any controversy, claim, or dispute between Owner/Operator and Vikand, including but not limited to any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, shall be resolved by binding arbitration in London, England, administered by the London Maritime Arbitrators Association ("LMAA") in accordance with its rules as promulgated by and in effect at the time of the arbitration demand, and judgment on the award rendered by the arbitrator(s) may be enforced or entered in any court having jurisdiction thereof. Arbitration shall be conducted in the English language, pursuant to the LMAA rules and the Parties agree to accept service of process outside of the jurisdiction, in any matter to be submitted to arbitration pursuant hereto, and expressly waive all rights they may have to trial by jury regarding such matter. The Parties further agree that the decision of the arbitrators shall be final, and each Party agrees that it shall not file any actions or proceedings to contest or challenge the arbitration decision and agrees to waive any such challenges or appeals.
Any dispute or controversy arising from or relating to this Agreement and its resolution shall be conducted, insofar as possible, in the utmost secrecy; and in the event of arbitration or litigation, subject to a protective order where all documents, testimony, and records shall be received, heard, and maintained by the arbitrator or court sealed, available for inspection only by the Parties, and by their respective attorneys and experts who shall agree, in advance and in writing, to receive all such information confidentially, and to maintain such information in secrecy until such information shall become generally known.
b. Attorneys' fees
The prevailing party in any dispute between the Parties shall be entitled to recover all costs, attorneys' fees, arbitration fees, and other expenses attributable to the dispute from the other party. If neither party is determined by the arbitral tribunal to be the prevailing party, then each party shall bear its own costs, fees, and expenses.
3. DATA PROTECTION - GDPR
Controller-Controller Clauses means European Commission decision 2004/915/EU, as amended, replaced or supplemented by the European Commission from time to time;
Controller-Processor Clauses means European Commission decision 2010/97/EU, as amended, replaced or supplemented by the European Commission from time to time;
Data Controller shall have the meaning given to "controller" in the Data Protection Laws; Data Processor shall have the meaning given to "processor" in the Data Protection Laws; Data Subject shall have the meaning set out in the Data Protection Laws;
Data Protection Laws shall mean the Data Protection Act 2018, the GDPR and any national implementing laws, regulations and secondary legislation relating to privacy and data protection, as amended or updated from time to time, including, where applicable, the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority and the equivalent of any of the foregoing in any relevant jurisdiction;
GDPR means the General Data Protection Regulation ((EU) 2016/679);
Personal Data shall have the meaning set out in the Data Protection Laws; and
Process or Processing shall have the meaning set out in the Data Protection Laws.
b. Each party agrees that its status as a Data Controller or Data Processor in connection with this Agreement varies according to the activities carried out by it, as set out in Schedule M. Where a party acts as Data Processor the subject matter, nature, and purpose of their Processing, and the categories of personal data and data subject involved, are also set out in Schedule M.
c. Each Party shall ensure that it has all necessary consents and notices in place for the lawful Processing of Personal Data in accordance with this Agreement.
d. Each Party undertakes that it shall comply (and shall require that its employees and shall use its best efforts to cause its agents and sub-contractors to comply) with the Data Protection Laws.
e. Each Party shall in the instance where it acts as a Data Processor of the other under this Agreement:
i. Process Personal Data only on the written instructions or direction given by the Data Controller;
ii. notify the Data Controller if it believes any instruction it has been given by the Data Controller is a breach of the Data Protection Laws;
iii. not do or permit anything to be done which might lead to a breach of the Data Protection Laws by the Data Controller;
iv. Process and deal with such Personal Data in accordance with the Data Protection Laws;
v. use Personal Data only as is necessary for the purposes of the Data Processor's performance of its obligations under this Agreement and not retain Personal Data for any longer than is necessary for the purpose set out in this Agreement;
vi. take appropriate technical and organisational measures to protect Personal Data against accidental or unlawful destruction, damage or accidental loss, alteration, unauthorised disclosure, use or access and against all other unlawful forms of Processing, including controls over entry, access, intervention, disclosure, input and preservation of and to the Personal Data, including maintaining an appropriate backup regime for data and where appropriate, pseudonymising and encrypting Personal Data;
vii. take all reasonable steps to ensure the reliability of the employees (who for the purposes of this Section shall be deemed to include all Shipboard Medical Contractors) who have access to any Personal Data and ensure that any employees requiring access to any Personal Data are under obligations of confidentiality;
viii. not appoint or allow any sub-processor to process Personal Data in connection with its Processing as a Data Processor without the express written consent of the Data Controller; and
ix. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for the Data Controller to audit compliance at any time.
f. Each Party shall, regardless of whether it acts as Data Controller or Data Processor in connection with the relevant Processing:
i. assist the other in any way and notify the other promptly and without undue delay in relation to any request from a Data Subject to access their Personal Data or to cease or not begin Processing, or to rectify, block, erase or destroy Personal Data;
ii. assist the other at the other Party's cost in relation to its compliance with security, breach notification and communication, impact assessments and prior consultation with supervisory authorities;
iii. only Process any Personal Data received from the other party in connection with this Agreement for the purposes set out in Schedule M; and
iv. without any undue delay after discovering any breach or failure of security which leads or may lead to the destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data which is Processed in relation to this Agreement, notify the other Party of the same and subject to the requirements or restrictions of any regulatory authority, provide full details of the breach and consequences, together with details of steps taken to remedy the breach and recover or safeguard the Personal Data concerned.
g. Each Party shall only transfer Personal Data to areas outside of the United Kingdom or the European Economic Area (EEA) in compliance with the Data Protection Laws. Where no other appropriate safeguards are in place under Article 46 GDPR in relation to such a transfer between the parties, the parties agree that:
i. where both Parties act as Data Controllers of that Personal Data (as set out in Schedule M), the Controller-Controller Clauses shall be deemed incorporated into this Agreement solely in relation to the relevant Processing; and
ii. where one Party acts as a Data Controller of that Personal Data, and the other Party its Data Processor, the Controller-Processor Clauses shall be deemed incorporated into this Agreement solely in relation to the relevant Processing, where the Party transferring that Personal Data outside of such territories is the "Data Exporter", and the other party the "Data Importer", and with the description of processing being that set out in Schedule Min relation to such Processing.
h. Where either Party appoints a sub-contractor, third parties or agents to Process Personal Data it shall remain fully liable for all acts or omissions of any third-party processors appointed by it.
i. On expiry or termination of this Agreement, neither Party shall retain or Process the Personal Data for longer than is necessary to carry out their respective Processing purposes set out in the table in Schedule M and each Party shall be entitled to continue to retain and Process the Personal Data in accordance with any statutory or regulatory retention periods that are applicable.