AMERICAN BUREAU OF SHIPPING
CLICK-THROUGH LICENSE AGREEMENT FOR
Mariner Safety / Near Miss Database 1.0
PLEASE READ THIS DATABASE LICENSE AGREEMENT (“CONTRACT”) CAREFULLY BEFORE ACCESSING OR USING THE MARINER SAFETY / NEAR MISS DATABASE 1.0 (“DATABASE”).  THIS IS A CONTRACT SETTING FORTH THE TERMS AND CONDITIONS UPON WHICH AMERICAN BUREAU OF SHIPPING (“ABS”) OFFERS TO LICENSE THE DATABASE TO YOU.  PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND CLICK ON THE ACCEPTANCE OR REJECTION BOX WHEN YOU HAVE FINISHED READING TO INDICATE WHETHER YOU AGREE TO THE TERMS AND CONDITIONS OF THIS CONTRACT.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS CONTRACT, THE DATABASE WILL NOT receive a  user id to access the database and  YOU WILL NOT HAVE THE RIGHT TO USE IT.
IMPORTANT NOTICE: The DATABASE is copyrighted by ABS.  All rights reserved.  Use of the DATABASE is subject to all the terms and conditions set forth in the Contract.  Use of the DATABASE is independent of any classification or certification activities of ABS.  ABS conducts classification and certification without regard to use of the DATABASE.

I. LICENSE AND USE LIMITATIONS

1. ABS hereby grants to you, and you accept, a non-exclusive, non-transferable, license to access the DATABASE in accordance with this Contract.  The DATABASE includes and provides access to ABS proprietary and third party software and databases. The license granted herein includes a grant by ABS of any necessary sublicense to incorporated software. ABS shall not provide source code of the DATABASE.  The license shall commence when you indicate your acceptance of all the terms and conditions of this Contract by clicking on the applicable buttons below and shall continue until terminated by expiration of this Contract.
2. Upon acceptance of these terms, ABS will provide a USER ID to access the DATABASE.
3. You hereby acknowledge that the DATABASE is proprietary and  to ABS.  You will hold and use the DATABASE in the same manner as you deal with your own proprietary information. You recognize and acknowledge that breach of the confidentiality obligations set out above will cause irreparable harm to ABS.  Should you breach these obligations, or should the DATABASE otherwise be operated outside the scope of this Contract, ABS shall have the right to immediate and temporary relief by way of injunction or restraining order against any further use, access to, or disclosure of the DATABASE and confidential information by you, with such temporary relief to remain in effect without bond while ABS seeks a permanent injunction from a court of competent jurisdiction.
4. Use of the DATABASE and the data entries contained therein are restricted to you for your own internal research and educational purposes.  Neither the DATABASE nor any part thereof shall be duplicated, except for archive and normal backup purposes, or in any way disclosed to others, in whole or in part, without the prior written permission of ABS.  Such prohibition on disclosure shall not apply to disclosures by you to your employees, provided such disclosures are reasonably necessary to your use of the DATABASE.  You shall take all reasonable steps to ensure that the DATABASE is not duplicated or disclosed by any of your employees in contravention of this Contract. 
5. You agree not to change or remove any names, insignia, or indicia from the DATABASE or output which indicates ownership of these items. 
6. You shall not use the name of ABS or the names of any of its employees nor any adaptation thereof in any advertising, promotional or sales literature without prior written consent of ABS in each case. 
7. It is not the responsibility of ABS to make any changes to the DATABASE to ensure hardware or software compatibility. 
8. You agree that you will not assign, sublicense, transfer, sell, duplicate, lease, or convey the DATABASE; allow the DATABASE to become the subject of any charge, lien or encumbrance; modify the DATABASE or permit another party to modify the DATABASE; reverse compile, decompile, reverse engineer, disassemble translate, or re-engineer the DATABASE or object code for the DATABASE; or attempt to merge, or merge, any portion of the DATABASE into other computer software. Furthermore you agree not to manipulate, copy, or delete any of the data entries of the DATABASE without the express written permission of ABS.
9. You will, prior to disposing of any media, erase or otherwise destroy any copy of the DATABASE contained therein.
10. Upon reasonable prior notice, ABS shall have the right to visit your office where the DATABASE is installed to verify your compliance with the terms of this Contract or have such inspection or verification performed by a third party.
11. Your agreement to this Contract and your acceptance of the DATABASE from ABS automatically puts these use limitations into effect. 
12. These use limitations shall survive the termination of this Contract.

II. PROPRIETARY RIGHTS

1. ABS shall retain all intellectual property rights, which include patents, copyrights, registered and unregistered design rights, trade marks, trade secrets, know how, database rights, industrial property rights, and all other similar or corresponding rights (whether registered or unregistered), and all applications for the same, whether under United States or foreign law, in the DATABASE and all data and information with respect to the DATABASE or technology embodied therein, and any other documentation instructions or other information relating thereto.
2. You acknowledge that, as between the parties, ABS is the sole and exclusive owner of, or has the right to license, the DATABASE.  No title to or ownership of the DATABASE or intellectual property rights relating to the DATABASE is transferred to you.
3. You shall preserve all patent, copyright, confidential and other proprietary notices included as part of the DATABASE and shall reproduce all such notices on or in any copies thereof, in whole or part, in any form.
4. All intellectual property rights arising from this Contract shall be vested in ABS.  In the event that new inventions, designs, processes, or derivative works arise as a result of this Contract, you acknowledge that all intellectual property rights shall belong to ABS.
5. The user ID  is proprietary to ABS and you will not attempt to defeat or circumvent the use limitation function of the DATABASE or user ID
6. The provisions concerning Proprietary Rights shall survive termination of this Contract for any reason.

III. DISCLAIMERS

1. The DATABASE is made available to you on an “as is” basis.  ABS assumes no responsibility whatsoever for your use of the DATABASE or of updated or enhanced versions of the DATABASE or the results obtained from the DATABASE.  ABS makes no warranties of any kind with respect to the DATABASE, its updates and enhancements, including any implied warranty of merchantability or of fitness for any particular purpose or any warranty that operation of the DATABASE will be uninterrupted or error-free.  ABS shall not be liable for delays in furnishing updates, enhanced or corrected versions of the DATABASE, services or any other required performance hereunder, and you accept fully all responsibility and liability of whatsoever kind or nature arising from use of the DATABASE and any decisions you make based on the DATABASE. 
2. The DATABASE requires you to input certain data.  You recognize that the data you input affects the results generated by the DATABASE, and you assume all responsibility for the data you input into the DATABASE and the corresponding results.
3. You acknowledge and agree that the DATABASE is merely a development and informational tool, and your use of the DATABASE has no impact on the classification by ABS of any of your vessels or other marine structures. 
4. You acknowledge and agree that statutes and regulations which may impact the DATABASE or its results are subject to change, and ABS makes no representations or warranties that the DATABASE or its results take into account or comply with current statutes or regulations.

IV. REMEDIES

1. Your sole remedy against ABS for loss or damage caused by or arising in connection with the performance or non-performance of this Contract, regardless of the form or action, shall be the lesser of the amount of actual direct proven damages or the amount you paid for the DATABASE. 
2. Under no circumstances will ABS or any of its affiliates be liable to you for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, even if ABS has previously been advised of the possibility of such damages, arising under this Contract.

V. TERM

1. This Contract is effective until terminated. You may terminate this Contract at any time by notifying ABS to terminate your USER ID
2. Each party shall have the right, without prejudice to its other rights or remedies, to terminate this Contract 30 days after written notice of termination is delivered to the principal office of the other party. This Contract automatically terminates if you: fail to comply with the terms and conditions of this Contract; become insolvent; cease doing business as a going concern; make an assignment for the benefit of creditors; file a petition for a receiver or in bankruptcy; or commit or fail to commit any act which jeopardizes the rights of ABS.

VI. EXPORT CONTROLS

You understand that the sale of the DATABASE is subject to various controls established under U.S. law on the export of technical data.  You further understand that current U.S. statutes and any rule, regulation, or guideline established thereunder may be amended or changed such that ABS cannot perform some or all of its obligations under this contract consistent with U.S. law.  You agree that should such an amendment to or change in the law occur, ABS will not be liable by reason thereof to you or to any third person for any damages, actual or consequential, for failure to perform any of the obligations of ABS under this Contract.  ABS further calls your attention to the U.S. government regulations prohibiting reexport of the DATABASE to certain countries, and you expressly affirm that you will fully abide by such regulations.

VII. GOVERNING LAW

The Contract shall be governed by the laws of the State of New York and the United States. Any dispute that cannot be resolved amicably shall be exclusively submitted to the appropriate court(s) in New York County, New York.  The parties irrevocably agree that the courts of New York County, New York, have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Contract and the documents to be entered into pursuant to it.  The parties irrevocably submit to the jurisdiction of such courts and waive any objection to proceedings in any such court on the ground of venue or on the ground that the proceedings have been brought in an inconvenient forum.  This subclause is for the benefit of ABS and shall not limit its right to take proceedings in any other court of competent jurisdiction.  If any action is brought to enforce any provisions of the Contract or for any breach, reasonable attorney’s fees shall be awarded to the prevailing party.

VIII. GENERAL

1. Each of the parties to this Contract is a legal entity or person separate and independent of the other.  Nothing contained in this Contract is to be construed or deemed to create a principal and agent relationship between the parties and/or any form of partnership or joint venture.  Neither party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other party.
2. As used herein, “you” refers to you as an individual, to the extent you are utilizing the DATABASE individually, or “you” refers to the entity for which you are utilizing the DATABASE within the scope of your employment.
3. This Contract supersedes all prior representations, arrangements and understandings between the parties relating to the subject matter hereof and except as expressly provided herein is intended by the parties to be a complete and conclusive statement of the terms and conditions of this Contract. 
4. The waiver or failure of either party to exercise in any respect any right provided for in this Contract shall not be deemed a waiver of any further right hereunder.
5. Captions and headings are used in this Contract for convenience only and shall have no effect on the construction and/or interpretation of the contents of the respective provision.
6. Any attempt by you to sell, sublicense, assign or transfer any of your rights, duties or obligations under this Contract, in whole or in part, shall be void and of no effect.
7. All rights and obligations of ABS under this Contract may be exercised by it or any of its successors or assigns, including but not limited to any agents, distributors or subcontractors, as may be appointed at ABS’s discretion.  Furthermore, all releases or other benefits in ABS’S favor shall apply to such successors or assigns, where applicable.
8. You agree to comply with the export regulations of any applicable country, including those of the United States regarding export or re-export of the DATABASE or media in any form, which may include obtaining the appropriate United States and foreign government licenses or approval.
9. If any provision of this Contract is held to be invalid, void, ineffective, unenforceable and/or illegal, such will not affect the validity and/or enforceability of the remaining provisions of this Contract Agreement.  In such case, the parties shall enter into good faith negotiations to amend such a provision in conformity with the original intention of the parties.