Master Agreement
Parties:
(1) the Kpler company identified in the Order Form (Kpler); and
(2) the customer identified in the Order Form (Customer),
each a party and together the parties.
By executing an Order Form expressly referencing this Master Agreement, Customer agrees to be bound by the terms and conditions of this Master Agreement, effective as of the Commencement Date.
Introduction:
Kpler is a fast-growing data intelligence company facilitating sustainable and efficient trade. From numerous disparate and unstructured sources, Kpler creates intelligence that brings transparency in dynamic markets characterised by opaque and incomplete information, such as commodity, gas, power and maritime. Kpler delivers market research on the complete value chain of commodities. This Master Agreement sets out the terms and conditions that (i) apply to Kpler's appointment to provide certain Services to Customer; and (ii) govern the overall relationship between the parties with respect to the provision by Kpler of those Services to Customer.
It is agreed as follows:
1. Definitions and interpretation
In this Master Agreement (including the Introduction) and the Order:
1.1 unless the context otherwise requires, the following definitions apply:
Affiliate means, in respect of a party, any company, partnership or other legal entity (other than a natural person) which directly or indirectly Controls, is Controlled by, or is under common Control with, that party from time to time;
Anniversary Date has the meaning given in Clause 8.2;
Annual Order Period means a twelve (12) month period starting on the Start Date, or the anniversary of the Start Date, as applicable, during the term of the Order, except that the final Annual Order Period may be a period of less than twelve (12) months depending on the effective date of termination of the Order;
Authorised Users means those users authorised by Customer to access and use the Services, subject to and in accordance with the provisions of the Clause 3.3(b) and the Order;
Business Day means any day that is customarily regarded in the country or locality where the Customer is established as a day when business is undertaken, excluding national, public, or bank holidays. If an obligation is to be performed on a day that is not a Business Day, the obligation will be performed on the following Business Day;
Charges means the fees for the provision of the Services, as set out in the Order Form and/or Change Notice or otherwise agreed by the parties in writing;
Change Notice means an order form for any move, add and change to new or existing Services;
Commencement Date means the date upon which the Order Form is executed (i.e. the date Customer countersigns it following signature by Kpler, or vice versa);
Confidential Information means (a) any information disclosed (directly or indirectly) by the disclosing party to receiving party pursuant to this Master Agreement and/or the Order, whether in written, graphic, machine readable, other tangible or oral form (including, without limitation, documents, new branding and visual identity details, marketing and business plans, software, prototypes, samples, trade secrets, know-how, financial information, data sets, and plant and equipment) and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; and (b) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Master Agreement and/or the Order, or by the nature of the information itself, regardless of whether such items are marked “Confidential Information”;
Control means, in respect of a person, the holding, or controlling, in each case, directly or indirectly, of shares or any similar rights of ownership in that person bearing the majority (more than fifty per cent (50%)) of voting rights attaching to all the shares or other rights of ownership in that person or having the power to direct or cause the direction and management of the policies of that person whether as a result of the ownership of shares, control of the board of directors, contract or any power conferred by the articles of association or other constitutional documents of such person, and Controlling and Controlled shall be construed accordingly;
CPI-U means the United States of America’s Consumer Price Index, as made available by the United States of America’s Bureau of Labor Statistics (BLS) or any successor organisation;
Customer Affiliate means an Affiliate of Customer;
Data means, in respect of the Order, all data, information, text, analyses, research, news, reports, alerts, papers, articles, insights, commentaries, assessments, opinion and thought leadership pieces, summaries, presentations, graphs, charts and drawings and other similar documents and information (whether embodied in any electronic or tangible medium) that is made available to Customer, its Licensed Affiliates and/or Authorised Users as part of, or that is otherwise accessed or created by any such persons using, the Services (including, where the Services include a subscription to Insight, all such “Data” made available as part of Insight);
End Date means the “End Date” stated in the Order Form and/or Change Notice;
Extended Subscription Period has the meaning given in Clause 13.1;
Force Majeure Event has the meaning given in Clause 19.1;
Information Notice has the meaning given in Clause 10.2;
Initial Subscription Period means the initial period starting on the Start Date during which Customer may, subject to the provisions of the Order, access and use the Services and Data, as set out in the Order Form. If no Initial Subscription Period is stated in the Order Form, the Initial Subscription Period shall be a period of twelve (12) months from the Start Date;
Insight means the “Insight” service offering, which provides research and/or news in respect of certain types of commodities. Depending on the commodity type, the service may cover only research or news, or both research and news;
Intellectual Property Rights means rights in the nature of passing off, get-up, registered designs and unregistered designs and design rights, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trademarks, service marks, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
Licensed Affiliate means, subject to Clause 3.3(e), a Customer Affiliate that is expressly stated to be a “Licensed Affiliate” in the Order Form, if any;
Master Agreement means this master agreement;
Order means (i) an executed Order Form (i.e. the date Customer countersigns it following signature by Kpler, or vice versa), which creates a separate, legally binding contract between the parties for the provision by Kpler of the Services; (ii) any Change Notice executed by the parties pursuant to Clause 6 from time to time; (iii) the terms and conditions of this Master Agreement (as amended from time to time in accordance with Clause 19.7); (iv) the Terms of Use; and (v) any other documents incorporated into this Master Agreement or the Order by reference, to the exclusion of all other terms and conditions (including any terms and conditions which Customer may purport to apply under any proposal, standard terms of business, purchase order, confirmation of order or similar document);
Order Form means an order form for a Service which contains the parties’ agreement on the details of the Services, Charges, payment term, Start Date, Initial Subscription Period and any other terms that the parties agree to document in the Order Form;
Relevant Period means the period during which this Master Agreement and the Order are in force;
Restricted Person means any person who from time to time (i) is named on a Sanctions List; (ii) is Controlled by, or acts on behalf of, a person named on a Sanctions List; (iii) is located, operating, ordinarily resident or incorporated in a Sanctioned Country; or (iv) is otherwise the target or subject of Sanctions;
Sanctioned Country means a country, territory or region which is, or whose government is, the subject of Sanctions;
Sanctions means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by any Sanctions Authority;
Sanctions Authority means any competent sanctions authority, including the United Kingdom, European Union, any European Union member state, United Nations and its Security Council, and the US government, together with any government entity of any such sanctions authorities, such as the US Department of State, the Office of Foreign Assets Control and His Majesty’s Treasury;
Sanctions List means a list of specifically designated nationals or designated persons held or administered by a Sanctions Authority;
Services means the product(s), service(s) or solution(s) to be provided by Kpler pursuant to the Order, as set out in the Order Form and/or Change Notice;
Start Date means the ‘Start Date’ stated in the Order Form and/or Change Notice;
Subscription Period means the period during which Customer may access and use the Services and Data, which comprises the Initial Subscription Period and any Extended Subscription Period(s);
Terms of Use means the applicable Kpler’s terms of use for the products and services that Kpler makes available from time to time, as determined, and notified to Customer and/or its Authorised Users, by Kpler from time to time. The Terms of Use are available Terms of Use (kpler.com); and
TP Data has the meaning given in Clause 4.4;
1.2 words importing the singular shall include the plural and vice versa;
1.3 unless otherwise stated, references to Clauses are references to the clauses of this Master Agreement;
1.4 Clause headings are included for convenience only and shall not affect the interpretation of this Master Agreement or the Order;
1.5 any reference to persons, includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
1.6 a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute;
1.7 any reference to a statute, statutory provision, subordinate legislation, code or guideline (legislation) is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation; and
1.8 any phrase introduced by the terms including, include, in particular, for example, such as or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Nature of this Master Agreement
2.1 This Master Agreement is a master framework agreement governing the overall relationship between the parties relating to the provision by Kpler of Services to Customer.
2.2 Customer appoints Kpler from the Commencement Date to provide Services to Customer as agreed by the parties from time to time in accordance with this Master Agreement and the Order Form. Kpler accepts such appointment on the terms and conditions of this Master Agreement and the Order Form.
3. Services
3.1 In respect of the Order:
(a) Kpler will provide the Services to Customer: (i) in accordance with the Order and all applicable laws; and (ii) using reasonable care and skills consistent with prevailing industry standards; and
(b) access to the Data as part of the Services shall be provided through the means of access stated on the Order Form or otherwise confirmed by Kpler, except as expressly agreed by the parties in writing (in the Order Form or otherwise).
3.2 Subject to the further provisions of this Master Agreement, in respect of the Order, Kpler hereby grants to Customer a non-exclusive, non-transferable licence to access and use, and allow its Licensed Affiliates to access and use, the Services and Data for the duration of the Subscription Period solely for Customer’s and its Licensed Affiliates’ internal business purposes only, which shall include internal research and internal reporting purposes, and in compliance with the provisions of this Master Agreement and the Order.
3.3 Except as may otherwise be expressly agreed by the parties in writing (in the Order Form or otherwise):
(a) only Authorised Users may access and use the Services and Data, except that internal reports or research prepared by Authorised Users that:
(i) reference in high-level summary (but do not reproduce) the Data;
(ii) set out high-level conclusions based on the Data; and/or
(iii) set out fixed graphs, charts and diagrams showing aggregated information, analyses or recommendations based on the Data,
may be shared by Authorised Users with other employees, officers, directors and staff members employed or engaged by Customer and its Licensed Affiliates for use in connection with Customer and its Licensed Affiliates’ internal business purposes only, provided always that such materials reference Kpler as the source of the data that is used to prepare such materials. Data accessed or extracted from the Services (in its raw or any other form) shall, however, only be accessed, used and viewed by Authorised Users. Any material produced by Authorised Users through their use of the Data must reference Kpler as the source of the Data;
(b) the Order Form sets out the maximum number of Authorised Users permitted to access and use the Services and Data. Each Authorised User shall at all times be an identifiable natural person who is an employee, officer, director or other staff member employed or engaged by Customer or one of its Licensed Affiliates. A person shall immediately cease to be an Authorised User if they cease to comply with the requirements of this Clause 3.3(b);
(c) each Authorised User will be assigned an account with a username and password to access and use the Services. An Authorised User’s account credentials must include the user’s individual corporate (and not personal) email address. Accounts cannot be created using generic email addresses that are not assigned to specific individuals. Customer shall ensure that the user credentials assigned to each Authorised User shall only be used by that Authorised User to access and use the Services; multiple users are not permitted to use the same account;
(d) if an Authorised User ceases to be employed or engaged by Customer or a Licensed Affiliate, or if Customer wishes to permanently substitute one Authorised User for another, Customer may request that Kpler re-assigns the account to a new Authorised User;
(e) the Order Form sets out details of any Licensed Affiliates. Notwithstanding any other provision of the Order, a person shall automatically cease to be a Licensed Affiliate in the event that (and with effect from the date that) it ceases to be a Customer Affiliate. Customer shall promptly, but no later than thirty (30) days, notify Kpler if any of its Licensed Affiliates ceases to be a Customer Affiliate;
(f) Customer shall not (and shall ensure that its Licensed Affiliates and Authorised Users shall not):
(i) access or use the Services (or access, use, extract and/or obtain any of the Data) through or by using any (Customer or third party) software, system, solution or web service (other than Kpler’s own online services) or any (Customer or third party) data aggregator or any other similar service/ arrangement; or
(ii) extract, export or copy any of the Data into any other spreadsheet, database, system or solution (other than internal databases that are accessible only by the Customer, including its Authorised Users), whether by manual, automated or any other means; and
(g) the licence granted pursuant to Clause 3.2 shall automatically terminate at the end of the Subscription Period.
3.4 Customer may at any time request, and Kpler may in its absolute discretion agree or refuse to grant, additional or different access and usage rights to those set out in this Clause 3 with respect to the Services and Data. Customer acknowledges that any use of the Services and Data outside the scope of the provisions of the Order must be expressly authorised by Kpler’s Chief Revenue Officer in advance in writing. Where agreed, any such rights shall be documented by the parties in writing (in the Order Form, a Change Notice or otherwise) and may be subject to the payment of additional Charges.
3.5 Customer acknowledges and agrees that, in respect of the Order:
(a) the Data (together with any other documentation Kpler makes available to Customer) is proprietary to Kpler or its third party licensors and is Kpler’s Confidential Information;
(b) any rights, title and interests in and to the Data (together with any documentation or other materials Kpler makes available to Customer) and Services, including any Intellectual Property Rights, are and shall remain the exclusive property of Kpler or its third party licensors;
(c) except as otherwise expressly set out in this Clause 3, neither Customer nor any Licensed Affiliate shall acquire any rights in or to the Data or Services under the Order or this Master Agreement; and
(d) but for the Order, Customer and its Licensed Affiliates would have no rights to access or use the Services or Data.
3.6 For the avoidance of doubt, nothing in this Master Agreement shall prevent Kpler from providing Services and/or access to its Data to any other parties, who may or may not compete with Customer.
3.7 If an Authorised User experiences any problems relating to the Services, Customer may contact Kpler’s support team by phone, email or using the online support form. The hours during which support operates are stated on Kpler’s website and may change from time to time at Kpler’s sole discretion. Upon notification of a problem, the support team will try to resolve the problem as quickly as possible. In respect of the Order, and except as expressly set out otherwise in the Order Form, the provision of support pursuant to this Clause 3.7 shall be included in the Charges. Support does not include any problem or question not directly related to the Services or that arises because an Authorised User does not know how to use the Services properly or does not use the Services in accordance with Kpler’s instructions made available to its users.
4. Use of the Services
4.1 Customer shall ensure that its Licensed Affiliates and Authorised Users comply with the provisions of the Order and Customer shall be responsible and liable to Kpler for all acts and omissions of such persons.
4.2 In particular, Customer is responsible and liable to Kpler for all consequences arising from the use or misuse of any Authorised User’s credentials. Any usage of the Services from an Authorised User’s account shall be deemed to have originated from Customer.
4.3 Customer shall (and shall ensure the Licensed Affiliates and Authorised Users shall) at all times comply with the applicable Terms of Use as amended from time to time and applicable laws.
4.4 Customer acknowledges that its (and its Licensed Affiliates’ and Authorised Users’) access to and use of the Services and Data may be subject to additional terms and conditions, as notified by Kpler to Customer from time to time. Customer shall (and shall ensure that its Licensed Affiliates and Authorised Users shall) comply with any such additional terms and conditions. An example of where Kpler may stipulate additional terms and conditions is where, in respect of the Order, Customer accesses or receives, as part of the Data, data and information that has been originally supplied to Kpler by a third party licensor (TP Data), the use of which is subject to additional terms and conditions.
4.5 The Customer, its Licensed Affiliates or Authorised User shall not input the Data into any external machine learning models, including but not restricted to public large language model (LLMs) for Generative artificial intelligence (GenAI), except in the case where an Authorised User is using an internal machine learning model for internal purposes. For sake of clarity, the Data shall not be used to train models for Customer's facing products without Kpler's prior written consent.
4.6 Customer shall notify Kpler of any breach by Customer of any of Clauses 3, 4, 9 and/or 16.2 within two (2) Business Days of becoming aware of the breach by emailing Kpler at legal-compliance@kpler.com and providing full details of the breach.
4.7 Where there is a breach of any of Clauses 3, 4, 9 and/or 16.2 by Customer, Kpler may at its sole discretion, with immediate effect and by giving notice to Customer (i) suspend access to the Services and Data for Customer, its Licensed Affiliates and/or any one or more individual Authorised Users under the Order Form and/or Change Notice(s); and/or (ii) terminate this Master Agreement or the Order pursuant to Clause 14.
5. Basis upon which the Services are provided
5.1 Subject to the provisions of the Order, Kpler will use reasonable endeavours to ensure that the Services are available at all times. Notwithstanding the foregoing, Customer acknowledges and agrees that there will be times when the Services and Data are unavailable. Such unavailability may be planned (for example, where Kpler is carrying out planned maintenance or upgrades) or unplanned (for example, where there is a hardware or software failure).
5.2 Where possible, Kpler will try to give Customer reasonable notice of any planned unavailability and Kpler will use reasonable endeavours to ensure that disruption resulting from any unavailability is kept to a minimum.
5.3 Customer acknowledges and accepts that it and its Licensed Affiliates and Authorised Users will not be able to access and use the Services or Data when the Services are unavailable. Kpler will try to keep unavailability to a minimum, but Kpler accepts no liability for any loss or damage that Customer and/or its Licensed Affiliates may suffer as a result of the Services and/or Data being unavailable.
5.4 Kpler may add to or change the Services and Data at any time without notice or explanation and without incurring any liability to Customer or its Licensed Affiliates, provided that any changes that Kpler makes shall, subject to Clause 5.5, not lead to a material degradation in the scope or content of the Services under the Order.
5.5 Notwithstanding any other provision of the Order, Kpler may at any time remove from the scope of the Services access to and use of any TP Data in circumstances where the relevant third party licensor requires the removal of such TP Data, or Kpler’s right to make such TP Data available through the Services, is terminated, suspended or otherwise restricted.
5.6 Whilst Kpler takes pride and care in the collation and production of the Data, the Data and Services provided under the Order are supplied on an “as is” and “as available” basis. The Data, including any Data made available through Insight, where applicable, should never be relied on as trading, investment, tax, legal, financial or any other form of advice or guidance; nor does the Data take account of any individual circumstances that may apply to Customer and/or its Licensed Affiliates.
5.7 The Customer shall (and the Customer shall ensure that any of its Authorised Users that are permitted to access and use the information made available through the Services pursuant to this Master Agreement and the Order shall) not use the information made available through the Services as part of, or in connection with, any publication and/or third party legal claim, legal action, litigation, arbitration, mediation and/or other dispute resolution process (including, by way of example, as evidence in, or to substantiate, any publication, legal claim or action), except where Kpler has given its prior written permission for such use (which may be given or withheld by Kpler in its absolute discretion). Where Kpler gives its permission to such use, to the maximum extent permitted by applicable law, Kpler shall not have any liability to the Customer in respect of the use of the information made available through the Services for such purposes.
5.8 In respect of the Order, Customer acknowledges and agrees (and shall ensure that its Licensed Affiliates acknowledge and agree) that:
(a) nothing in the Data shall constitute, or be construed as constituting, an inducement, offer, recommendation or solicitation, as applicable, to buy, sell, hedge, hold or otherwise trade in a commodity or particular type(s) of commodity. Any prices quoted in the Data are indicative prices only and are subject to change;
(b) Customer and each of its Licensed Affiliates shall be solely responsible for all decisions, acts and omissions that are made or undertaken that take account of, or that are based or rely on, the Data;
(c) where the Data or Services refer to historic or prevailing trends or performance, or to future projections, forecasts, estimates or predictions (including forward looking statements), no representation, warranty, assurance or undertaking is given by Kpler (i) that those historic or prevailing trends or performance will in any way guarantee or predict future results; or (ii) as to the probability, reliability, achievement or reasonableness of those future projections, forecasts, estimates or predictions (including forward looking statements); and
(d) future projections, forecasts, estimates or predictions (including forward looking statements), in particular, may be based on certain assumptions and/or reflect Kpler’s expectations, predictions and estimations and may therefore be subject to a range of uncertainties, unknowns and/or risks that may mean that the actual, real life events or results differ significantly. Reliance should therefore never be placed on such future projections, forecasts, estimates or predictions (including forward looking statements).
5.9 In respect of the Order pursuant to which the Services comprise or include Insight, Customer acknowledges and agrees (and shall ensure that its Licensed Affiliates acknowledge and agree) that the Data made available through Insight is for general background information (and, sometimes, promotional) purposes only and Customer, its Licensed Affiliates and Authorised Users may use and refer to such Data solely for general background information (or, where applicable, promotional) purposes in connection with Customer’s and its Licensed Affiliates’ internal business purposes.
6. Upgrade or Changes to Services
6.1 Customer may request to (i) upgrade the Services at any time or (ii) change the existing Services at the end of the Subscription Period by contacting Kpler’s support team – for example, to increase the number of Authorised Users, add Licensed Affiliates or purchase additional services offered by Kpler from time to time.
6.2 Where Customer and Kpler agree to upgrade the Services and the upgrade is to take effect during (rather than at the end of) the Subscription Period:
(a) Kpler will send Customer a Change Notice setting out (i) details of the additional features or services purchased as part of the upgrade; (ii) the additional Charges payable in respect of the upgrade; (iii) the date upon which the upgraded Services will start. The upgrade to the Services will be binding, and will constitute a variation to the Order, with effect from the Start Date; and
(b) Kpler will charge Customer the additional Charges applicable to the upgraded Services, pro-rated according to the number of days remaining in the then current Subscription Period, as applicable. Upon any renewal of the Order in accordance with Clause 13.1(b), Kpler will charge Customer the full Charges applicable to Customer’s upgraded Services for the relevant Extended Subscription Period (as determined in accordance with the further provisions of the Order).
6.3 Where Customer and Kpler agree to change the Services or upgrade the Services but such upgrade is to take effect at the beginning of the following Extended Subscription Period, Kpler will send Customer a Change Notice setting out all the relevant changes and/or upgrades agreed between the parties. The change and/or upgrade to the Services will be binding, and will constitute a variation to the Order, with effect from the beginning of the following Extended Subscription Period.
7. Customer supplied data
7.1 The parties acknowledge that they may, in respect of the Order, agree arrangements whereby Customer supplies data within its possession or control to Kpler for Kpler to use for certain agreed purposes (which the parties shall record in writing). In such circumstances, Kpler agrees that such data will be the Confidential Information of Customer and Kpler will only use and disclose the data for the purpose(s) for which it has been supplied to Kpler by Customer. Where Customer supplies any such data to Kpler, Customer hereby grants to Kpler a non-exclusive, worldwide right to use and allow others to use such data for those agreed purposes. Customer shall ensure that it has the right to disclose the data to Kpler and that Kpler’s use of the data for the agreed purpose(s) is permitted and does not infringe the rights, including Intellectual Property Rights, of any third party.
8. Charges, invoicing and payment
8.1 In respect of the Order, and except as otherwise expressly agreed by the parties in writing:
(a) the charging, invoicing and payment terms for the Services are as set out in this Clause 8 and the Order;
(b) subject to Clause 8.2, the Charges payable in respect of the Subscription Period shall be as set out in the Order Form (as amended or supplemented by any Change Notice);
(c) the arrangements for the payment of the Charges during the Subscription Period shall be set out in the Order Form and any Change Notice;
(d) Customer shall pay any invoice submitted by Kpler in respect of the Charges within thirty (30) days of the date of the invoice (or such other period as may be expressly agreed by the parties and set out in the Order Form or any Change Notice). Customer shall make all payments due to Kpler by electronic transfer. All Charges are non-refundable;
(e) Customer shall ensure that, in respect of each sum payable to Kpler, Kpler receives in cleared funds a sum equal to the total amount payable to Kpler, which shall be paid by Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). It is also Customer’s responsibility to cover any bank charges that apply in respect of all such payments; and
(f) if any of the Charges are not paid by Customer by the date payment is due, Kpler reserves the right (without notice, and without prejudice to any other rights that it may have under the Order) to:
(i) charge interest on the unpaid sum at an annual rate of four per cent (4%) above the base-lending rate of the Bank of England, which interest shall accrue on a daily basis from the due date to the date of payment of the outstanding amount in full. Customer shall be held liable for any collection costs attributed to the collection of unpaid Charges. Kpler is entitled to charge Customer with a reasonable compensation for all supplementary collection costs due to the late and / or overdue payment; and
(ii) suspend provision of the Services (including the Data made available through the Services) from the due date until the date that all outstanding Charges are paid in full.
8.2 Kpler may increase the Charges payable by Customer on each anniversary of the start date of the Subscription Period (Anniversary Date). The adjusted Charges shall be calculated using the following formula:
Adjusted Charges = Charges x (Current Index/ Base Index + 10%)
Base Index means the initial value of the CPI-U as of the month preceding the start date of the Initial Subscription Period.
Current Index means the value of the most recent CPI-U available.
Kpler will notify Customer of any increase to the Charges sixty (60) days prior to the Anniversary Date that it makes pursuant to Clause 8.2. Where increases to the Charges are made by Kpler pursuant to this Clause 8.2, the increase will take effect from the relevant Anniversary Date and references to the Charges under the Order shall thereafter be inclusive of any such increases.
For the sake of clarity, any increase pursuant to this Clause shall be calculated on the undiscounted price.
8.3 Where Kpler has agreed to provide the Services (or any part of them) at a discounted price and/or complimentary basis, the terms of such benefit shall be set out in the Order Form and shall only apply for the period specified in the Order Form. Notwithstanding the foregoing, except as expressly set out otherwise in the Order Form:
(a) any discount or complimentary offer that applies for the Subscription Period shall automatically cease to apply at the end of the term agreed between the parties; and
(b) Kpler’s undiscounted price for the Services, as determined by Kpler and communicated to Customer in accordance with Clause 8.1(a), shall apply in respect of the Services (or any part of them) to which the discount originally or the complimentary offer applied for any subsequent Extended Subscription Period.
8.4 Any amount payable under this Master Agreement or the Order by Customer to Kpler shall be paid free and clear of any deduction or withholding in respect of any tax whatsoever, save only as may be required by applicable law. If any deduction or withholding is required by applicable law to be made from any such payment, Customer shall increase the amount of the payment by such additional amount as is necessary to ensure that the net amount received and retained by Kpler is equal to the amount which it would have received and retained had the payment in question not been subject to any deductions or withholdings.
8.5 All amounts payable by Customer under the Order shall be payable in the currency shown in the Order Form, except that where no currency is stated, all such amounts shall be payable in pounds sterling.
8.6 The Charges on the Order Form are stated exclusive of value added and other sales taxes, which shall be added at the prevailing rates as applicable and paid by Customer.
8.7 Customer acknowledges and agrees that (i) Kpler’s charges, payment arrangements and pricing information (including the Charges) are its Confidential Information; and (ii) Customer shall keep such information confidential (and not disclose it to third parties) subject to and in accordance with Clause 9.
8.8 If, at any time, Customer fails to comply with the payment terms foreseen in this Master Agreement, if Customer experiences a material adverse change in its financial condition, if Customer presents an undue risk of non-payment in Kpler's reasonable opinion, or if Kpler has a good faith reason to believe Customer does not intend to, or is unable to perform its obligations in this Master Agreement, Kpler may at its option (and in addition to any other remedies available by applicable law or in this Master Agreement) exercise one or more of the following rights: (i) require a deposit or other form of payment security from Customer; (ii) adjust Customer's payment terms; (iii) refuse to accept additional Orders from Customer; and/or (iv) require adequate written assurance of Customer's intent and ability to perform its obligations.
9. Confidential Information
9.1 Each party shall hold in confidence all Confidential Information of the other party. Neither party shall disclose to any third party any Confidential Information in relation to the other party except as expressly set out in Clauses 9.3 and 9.8 or with the prior express written permission of the other party.
9.2 The provisions of Clause 9.1 shall not apply to any information which: (i) is or becomes public knowledge other than by breach of this Clause 9; (ii) is already in the possession of the receiving party without restriction in relation to disclosure prior to its receipt from the disclosing party or the other members of its group of companies; (iii) is received from a third party (who, for the avoidance of doubt, is not an Affiliate of the receiving party) which the receiving party reasonably believes lawfully acquired or developed it and is under no obligation restricting its disclosure; or (iv) is independently developed by the receiving party without use of any Confidential Information disclosed by the disclosing party.
9.3 Subject to Clause 9.4, the receiving party may disclose Confidential Information in relation to the disclosing party:
(a) to those of its officers, employees, professional advisers, Affiliates, agents or sub-contractors on a strict “need to know” basis and only as may be reasonably necessary for the purpose of fulfilling its obligations under this Master Agreement or the Order or, in the case of professional advisors, for use in their professional capacity, provided that before any such disclosure receiving party shall make such officers, employees, professional advisers, Affiliates, or agents or sub-contractors bound by confidentiality obligations similar to those in this Master Agreement at all times; or
(b) where such disclosure is required by any applicable law, court order or competent regulatory or governmental authority.
9.4 Notwithstanding Clause 9.3(a), Customer shall (subject to Clause 9.3(b)) only be permitted to use and disclose the Data, which is the Confidential Information of Kpler, on the basis and to the persons expressly permitted by Clauses 3 and 4.
9.5 Notwithstanding Clause 9.1, Kpler may use and disclose any data supplied by Customer pursuant to Clause 7 on the basis and to the persons expressly agreed by the parties pursuant to Clause 7.
9.6 Without prejudice to the other rights of the disclosing party, in the event of an unauthorised disclosure or use of its Confidential Information occurring directly or indirectly through disclosure made to the receiving party, the receiving party shall (as soon as it becomes aware of the same) notify the disclosing party of such unauthorised disclosure and use all reasonable endeavours to assist the disclosing party in recovering and preventing the use of, dissemination, sale or other disposal of such Confidential Information.
9.7 Subject to Kpler obtaining Customer’s prior written consent (which may be given by email), Kpler may refer to Customer by name in its marketing materials or information. In addition, subject to the agreement of the parties in writing (which may be by email), the parties may issue a (joint) press release relating to any of the Services Kpler provides to Customer.
9.8 Kpler may disclose the existence and terms of this Master Agreement and the Order to any actual or prospective purchaser (and its professional advisors) of all or any part of its business or the group of companies of which it forms part, provided that before any such disclosure Kpler shall make such persons aware of its obligations of confidentiality under this Master Agreement and the Order and shall at all times procure compliance by those persons with them.
10. Data protection
10.1 Kpler is a controller of the personal information that it processes in connection with this Master Agreement, the Order and the administration of Kpler’s business relationship with Customer. This means Kpler is responsible for ensuring it complies with all applicable data protection laws when processing personal information.
10.2 Kpler is committed to data protection compliance and this Clause 10 and Kpler’s full privacy notice (together, Information Notice) provide detailed information about how Kpler processes personal information.
10.3 The personal information Kpler processes in connection with this Master Agreement, the Order and the administration of Kpler’s business relationship with Customer includes details such as individuals' names, email addresses, job titles and categories, telephone numbers, address details, social media contact details and areas or topics of professional interest.
10.4 The main purposes for which Kpler processes personal information are to: (i) provide the Services; (ii) manage and develop Kpler’s business relationship with Customer; and (iii) comply with Kpler’s legal and regulatory requirements. Kpler may also process the personal information of Authorised Users and the individuals through whom it conducts its business relationship with Customer for marketing purposes. Where Kpler does this, it will do so in compliance with all relevant marketing and data protection laws.
10.5 The Services also allow Kpler to track and monitor (i) the geographic region/area from which Authorised Users access and use the Services and, where applicable, the type of internet browser that is being used to access the Services; and (ii) how and when, and how often, Authorised Users access and use the Services – including, by way of example, the type of features and functions that Authorised Users click on and use, and how often Authorised Users access and use those features and functions. Kpler uses this information to (i) understand how and where the Services are being used and to provide, develop and improve its products, services and solutions (for example, Kpler monitors usage to identify potential problems with the Services (such as slow system response) or usage that breaches this Master Agreement or the Order); and (ii) enhance the commercial and contractual discussions with Customer. Kpler does this through (i) the collection of information such as the user and login credentials of Authorised Users, IP addresses and the data created through the use of the Services; and (ii) the use of cookies and other data collection and monitoring tools/technologies.
10.6 Where Customer or any of its Authorised Users provides any personal information to Kpler under or in connection with this Master Agreement or the Order, Customer shall: (i) make sure the information is accurate and, where necessary, up to date; and (ii) inform each relevant individual that it is giving their personal information to Kpler and that their information will be processed by Kpler in the manner and for the purpose described in the Information Notice, unless applicable data protection laws allow Kpler to process that individual's personal information in line with the Information Notice without such information being given to the individual.
10.7 Customer acknowledges and agrees that: (i) Kpler will assume that it may process all personal information that Customer, its Licensed Affiliates and/or Authorised Users provide to Kpler in accordance with the Information Notice; and (ii) accordingly, Customer shall (and shall ensure that its Licensed Affiliates and Authorised Users shall) only provide to Kpler personal information that Kpler can process in accordance with the Information Notice. In addition, and in order to help Kpler to use only the personal information that it needs for the purposes for which Kpler processes such information, Customer shall (and shall ensure that its Licensed Affiliates and Authorised Users shall) only provide to Kpler the personal information that Kpler specifically asks Customer, its Licensed Affiliates and/or Authorised Users to share with Kpler.
10.8 If Customer, Licensed Affiliates or the Authorised Users have any questions in relation to Kpler’s use of personal information, Customer, its Licensed Affiliates and/or its Authorised Users may contact Kpler at dataprotection@kpler.com.
11. Warranties and undertakings
11.1 Each party warrants and undertakes to the other party that: (i) it has the power and is duly authorised to enter into, perform and comply with its obligations under this Master Agreement and the Order; (ii) this Master Agreement and the Order is executed by one of its authorised representatives; and (iii) its entry into this Master Agreement and the Order and its performance of and compliance with its obligations under them do not and will not violate any restriction imposed by any law or regulation to which it is subject, its memorandum or articles of association, or any agreement to which it is a party. For the sake of clarity, Customer warrants and undertakes that it has the power and authority to bind the Licensed Affiliates, if any.
11.2 The warranties and conditions stated in this Master Agreement and the Order are in lieu of all other conditions, warranties or other terms that might be implied into or incorporated into this Master Agreement or the Order whether by statute, common law or otherwise, all of which are hereby excluded to the extent permitted by law.
12. Liability
12.1 Nothing in this Master Agreement or the Order shall exclude or in any way limit:
(a) a party's liability for death or personal injury caused by that party's negligence or the negligence of its directors, officers, employees or subcontractors;
(b) a party's liability for fraud or fraudulent misrepresentation by that party or its directors, officers, employees or subcontractors;
(c) a party's liability for any breach of Clause 9;
(d) Customer’s liability to pay all Charges properly due and payable under each Order;
(e) Customer’s liability under or in connection with Clauses 3, 4, 8, 12.8, 15.6 and 16; and
(f) a party's liability for any other liability that cannot be limited or excluded by law.
12.2 Subject to Clause 12.1, each party excludes all liability for indirect, incidental, special, punitive, consequential or exemplary loss or damage arising out of or in connection with this Master Agreement and the Order.
12.3 Subject to Clause 12.1, each party shall have no liability to the other party for any failure to comply, or delay in complying, with its obligations under this Master Agreement and/or the Order to the extent that such failure or delay is due (directly or indirectly) to a failure by the other party to comply, or a delay by the other party in complying, with its obligations under this Master Agreement or the Order.
12.4 Subject to Clause 12.1, Kpler excludes all liability for loss of profits, loss of sales, loss of business, loss of contract, loss of opportunity, loss of revenue, loss of anticipated savings, loss of technology, business interruption, wasted management time, loss of, destruction of or damage to data and/or loss of or damage to business opportunity, goodwill and/or reputation, in each case arising out of or in connection with this Master Agreement or the Order. Kpler’s responsibility for the Services is solely towards the Customer, and not towards any Licensed Affiliates, Authorised Users or Customer Affiliates.
12.5 To the maximum extent permitted by applicable law, Kpler shall not be liable to Customer under this Master Agreement or the Order:
(a) for any inaccuracies, errors and/or omissions contained in the Services and/or Data;
(b) for any loss or damage, whether direct, indirect or consequential, suffered by Customer and/or any third party in respect of any reliance that Customer and/or any third party places on any of the Data and/or Services; and
(c) in respect of any part of the Data that is sourced or derived from publicly available data sources, including public registers and other published information,
and, to the maximum extent permitted by law, Kpler expressly excludes all warranties, conditions and representations, express or implied, and liability, in this regard and in respect of the adequacy, accuracy, completeness or reasonableness of the Data or Services.
12.6 Subject to Clause 12.1, the total aggregate liability of each party to the other party under or in connection with each Order (whether such liability arises under any statute or in contract, tort (including negligence) or otherwise) that arises as a result of any and all acts, omissions, events, circumstances or other matters:
(a) that occur during each Annual Order Period, shall be limited to the greater of (i) an amount in pounds sterling equal to the Charges actually paid by Customer to Kpler under the Order in respect of that Annual Order Period; and (ii) £10,000; and
(b) that occur at any time after the date of termination of the Order, shall be limited to the greater of (i) an amount in pounds sterling equal to the Charges actually paid by Customer to Kpler under the Order in respect of the final Annual Order Period; and (ii) £10,000.
12.7 Subject to Clause 12.1, the total liability of each party to the other party under or in connection with this Master Agreement (whether such liability arises under any statute or in contract, tort (including negligence) or otherwise, but excluding any liability arising under or in connection with any Order(s)), shall be limited to £10,000.
12.8 In respect of this Master Agreement and the Order, Customer shall indemnify Kpler against all claims, demands, actions, costs, damages, losses and expenses (including legal costs and disbursements on a solicitor and client basis) suffered or incurred by Kpler arising out of, or in connection with:
(a) Customer and its Licensed Affiliates’ and Authorised Users’ access to and/or use of the Services and Data (including with respect to any third party claims threatened, alleged or brought against Kpler arising out of, or in connection with, the access to and/or use of the Services and/or the use or disclosure of any of the Data); and/or
(b) clauses 10 and 16;
except to the extent that such claims, demands, actions, costs, damages, losses or expenses are as a direct result of any breach by Kpler of the terms and conditions of this Master Agreement or the Order.
12.9 The parties agree that if any provision contained in this Clause 12 is held to be invalid it shall be deemed to be omitted, but if either party thereby becomes liable for loss or damage which would otherwise have been excluded or limited, such liability shall be subject to the remaining provisions set out in this Clause 12.
12.10 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Master Agreement or the Order.
13. Term
13.1 Term of Order. The Order shall, subject to earlier termination in accordance with its terms and conditions or otherwise in law or equity:
(a) commence on the Start Date and continue in full force and effect for the Initial Subscription Period; and
(b) subject to Clause 13.2, and except as otherwise expressly agreed by the parties in writing (in the Order Form or otherwise), automatically extend for a period of twelve (12) months (Extended Subscription Period) at the end of the Initial Subscription Period and each Extended Subscription Period.
Customer or Kpler may give written notice to the other, no later than thirty (30) days before the end of the Initial Subscription Period or the relevant Extended Subscription Period, to terminate the Order at the end of the Initial Subscription Period or the relevant Extended Subscription Period, as the case may be.
13.2 Term of Master Agreement. Subject to earlier termination in accordance with its terms and conditions or otherwise in law or equity, this Master Agreement shall commence on the Commencement Date and shall continue in full force and effect until the end of the Subscription Period.
14. Termination
14.1 Either party may terminate this Master Agreement and/or the Order with immediate effect by giving prior written notice of such termination to the other party at any time on or after the occurrence of any of the following events:
(a) Customer fails to pay any of the Charges under the Order when due and Customer fails to pay such Charges within fifteen (15) days of being notified of the non-payment by Kpler; or
(b) Customer (including, any Licensed Affiliates) commits a breach of any of Clauses 3, 4 and/or 16.2; or
(c) the other party (including, any Licensed Affiliates) commits a material breach of any of the terms of this Master Agreement and/or the Order and either that breach is not capable of remedy or, if the breach is capable of remedy, the defaulting party (including, any Licensed Affiliates) fails to remedy that breach within thirty (30) days of being notified of the breach by the non-defaulting party; or
(d) the other party becoming insolvent; the other party having a resolution passed or a petition presented for its winding-up or dissolution (other than for the purpose of a solvent amalgamation or reconstruction); the making of an administration order in relation to the other party, or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the other party; the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or any event analogous to those set out above in any relevant jurisdiction; or
(e) a Force Majeure Event prevents the other party from performing its obligations (other than payment obligations) for at least thirty (30) consecutive days.
For the sake of clarity, Kpler’s liability shall not be engaged in any of the abovementioned events.
15. Effects of termination
15.1 The termination of this Master Agreement or the Order shall not prejudice or affect any right of action or remedy which shall have accrued up to the date of such termination.
15.2 The termination of the Order and/or the Master Agreement shall automatically operate the termination of the Master Agreement as of the date of termination of the Order, and vice versa, the termination of the Master Agreement shall automatically operate the termination of the Order as of the date of termination of the Master Agreement.
15.3 In the event the Order is terminated prior the end of the Subscription Period, the Charges are due in full by the Customer and are non-refundable.
15.4 Notwithstanding any other provision of the Order, the Subscription Period shall automatically end on the effective date of termination of the Order.
15.5 Kpler shall cease providing the Services and Data, and Customer shall (and shall ensure its Licensed Affiliates and Authorised Users shall) cease using the Services and Data, with effect on and from the date of termination of the Order, except that each of Customer and its Licensed Affiliates may retain and continue to use any Data that it holds as at the date of termination solely to the extent that, and only for so long as, such retention and use is required by any law or regulation to which it is subject. No other use of the Data is permitted following termination of the Order.
15.6 The Customer acknowledges and agrees to promptly and securely purge and delete from its systems (as well as from Licensed Affiliates and Authorised Users’ systems) all Data provided by Kpler in accordance with the Order, as well as any related Confidential Information, with effect on and from the date of termination of the Order. The Customer further agrees to provide written confirmation to Kpler within thirty (30) days from the date of termination of the Order, certifying the complete and irreversible deletion and purging of all such Data and/or Confidential Information. Failure to comply with this obligation shall constitute a material breach and Kpler reserves the right to seek legal remedies and compensation for any damages incurred as a result of the failure to delete and purge said data, in accordance with terms of the Master Agreement and applicable laws and regulations.
15.7 Clauses 1, 3.5, 4, 5.1, 5.3, 5.6, 5.8, 5.9, 7, 8, 9, 10, 11.2, 12, 15, 17, 18, 19 and 20 shall survive the termination of this Master Agreement and the Order, as will any other provisions which are intended (whether expressly or by implication) to survive such termination.
16. Compliance
16.1 By engaging in any transactions or interactions with Kpler, the Customer expressly agrees to abide by and be bound by all applicable policies of Kpler, which are available on Kpler’s website and referenced to in the Order Form.
16.2 In respect of this Master Agreement and the Order, Customer warrants and undertakes that:
(a) neither Customer, nor any of its Affiliates, nor any of its Authorised Users, shall during the Relevant Period: (i) be a Restricted Person; (ii) be Controlled by, or Control, a Restricted Person; or (iii) act on behalf of, or for the benefit of, a Restricted Person;
(b) neither Customer, nor any of its Affiliates, nor any of the Authorised Users, shall during the Relevant Period: (i) be located within a Sanctioned Country; or (ii) use the Services or Data in a manner or for a purpose prohibited by Sanctions or in respect of business in a Sanctioned Country; and
(c) Customer and each of its Affiliates shall during the Relevant Period comply with all Sanctions and shall refrain from acting in any way that could cause Kpler to violate any Sanctions.
16.3 Kpler may, at its own discretion, suspend or terminate this Master Agreement and/or the Order with immediate effect of such suspension or termination, in case it has evidence that the Customer or any of its Affiliates, or any of its Authorised Users is a Restricted Person. For the avoidance of doubt, it is acknowledged between the parties that there is substantial evidence for such suspension or termination if a financial institution where Kpler owns a bank account rejects payment of Charges by the Customer because of being a Restricted Person. The effects of termination of Clause 15 hereof shall also apply in this case.
16.4 Each party will: (i) comply with all laws relating to anti-bribery, anti-corruption and modern slavery (including the United Kingdom Bribery Act 2010 and Modern Slavery Act 2015); and (ii) have and will maintain in place throughout the Relevant Period adequate policies and procedures to help ensure its, and its associated persons', compliance with such laws and will enforce them where appropriate.
16.5 The Parties acknowledge that the Services provided under this Master Agreement may be subject to export laws and regulations of other countries, and any use of such Services, and, if applicable, technical information must be in compliance with all applicable regulations and international trade sanctions. The parties will not use, distribute, transfer, or transmit the Services or technical information (even if incorporated into other Services) except in compliance with all applicable export regulations and trade sanctions. If requested by either party, the other party also agrees to sign written assurances and other export-related documents as may be required to comply with all applicable export regulations. Customer shall not act, directly or indirectly, in any manner that would cause Kpler to violate any applicable export regulations and trade sanctions.
17. Notices
17.1 All notices required by this Master Agreement shall be in writing and sent to the relevant party at the addresses set out in the Order Form, or such other addresses as may be notified by the relevant party to the other party under this Clause 17, by hand, prepaid registered mail, prepaid express courier service, or email.
17.2 Any notice served under this Master Agreement or the Order shall be deemed to have been received: (i) if given by hand, immediately; (ii) if given by registered mail, the third (3rd) Business Day following posting; (iii) if given by express courier service, the third (3rd) Business Day following dispatch; and (iv) if given by email, upon arrival of the complete and uncorrupted email message on the recipient's server or email service.
18. Entire agreement
18.1 This Master Agreement, together with the Order, constitutes the entire agreement between the parties in respect of their subject matter and supersedes all previous negotiations, agreements and commitments (whether written or oral) with respect thereto.
18.2 Each party acknowledges and agrees that in entering into this Master Agreement it has not relied on any representation made by the other party or any arrangement, understanding or agreement (whether written or oral) with the other party that is not expressly set out or referred to in this Master Agreement.
18.3 Each party acknowledges and agrees that in entering into the Order it has not relied on any representation made by the other party or any arrangement, understanding or agreement (whether written or oral) with the other party that is not expressly set out or referred to in the Order.
19. General
19.1 Force Majeure. Save in respect of any and all payment obligations under this Master Agreement and the Order, which shall continue to apply at all times, neither party shall be liable to the other party for any delay or non-performance of its obligations under this Master Agreement or the Order arising from any cause beyond its reasonable control including strikes or labour disputes (other than strikes or labour disputes that only affect the party delayed or unable to perform its obligations), lock-outs, acts of God, war, terrorist attack, riot, civil commotion, malicious damage, compliance with any law, governmental order, rule, regulation or direction or any action taken by a government or public authority (including imposing an export or import restriction, quota or prohibition), nuclear, chemical or biological contamination, sonic boom, pandemic, epidemic, breakdown of or error or non-performance of plant, machinery, utility service, technology or communications networks, fire, explosion, collapse of buildings, flood or storm (Force Majeure Event).
19.2 Audit rights. Customer shall allow, at reasonable intervals, Kpler and any auditors of, or other advisers to, Kpler to access any of Customer’s and its Licensed Affiliates premises, personnel and its and their relevant records and systems as may be reasonably required in order for Kpler to verify that Customer is complying with its obligations under this Master Agreement and the Order and, in particular, that (in respect of the Order) Customer, its Authorised Users and its Licensed Affiliates are using the Data and Services in accordance with this Master Agreement and the Order. All such audits shall be conducted on Business Days during working hours and subject to thirty (30) days’ prior written notice to the Customer, except in the event of fraud or reasonable suspicion of fraud. Customer shall fully co-operate with any such audit. Where, in respect of the Order, Customer accesses or receives TP Data as part of the Data, Kpler may disclose the results of the audit to the third party licensor to the extent only that the results relate to Customer and its Licensed Affiliates’ use of the TP Data.
19.3 Rights of Third Parties. Nothing in this Master Agreement or the Order shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999.
19.4 Assignment. Customer shall not, without the prior written consent of Kpler, assign or transfer all or any part of its rights, benefits or obligations under this Master Agreement or the Order to any third party. Kpler may assign or transfer all or any part of its rights or benefits under this Master Agreement and/or the Order to a third party.
19.5 Waiver. Failure or neglect by either party to enforce at any time any of the provisions contained within this Master Agreement or the Order shall not be construed nor shall be deemed to be a waiver of its rights under this Master Agreement or the Order nor shall it in any way affect the validity of the whole or any part of this Master Agreement or the Order nor prejudice its rights to take subsequent action.
19.6 Severance. If any provision of this Master Agreement or the Order, including this provision, is held for any reason to be void, voidable or unenforceable, this shall not affect the validity or the enforceability of any other provision of this Master Agreement or the Order or the remainder of this Master Agreement or that Order as a whole.
19.7 Modifications. Neither this Master Agreement, including this provision, nor the Order shall be amended, modified, varied or supplemented except in writing signed by duly authorised representatives of the parties. Any amendments made to this Master Agreement in accordance with this Clause 19.7 shall, unless expressly agreed otherwise by the parties, automatically apply to the Order (which incorporates the terms and conditions of this Master Agreement) that is in force with effect from the date that the parties have agreed the amendments are to take effect.
19.8 Order of precedence. If there is any conflict or ambiguity in the provisions of the Order then the following order of decreasing precedence shall apply: (i) the provisions of the Terms of Use; (ii) the provisions of any Change Notice; (iii) the provisions of the Order Form; (iv) the provisions of this Master Agreement; (v) the provisions of any other documents referred to in the Order.
19.9 Sub-contracting. Kpler may use third party subcontractors and service providers (including cloud services providers and Kpler’s Affiliates) to carry out any or all of its obligations under this Master Agreement and the Order. Kpler may, subject to Clause 10, provide any information (including Confidential Information) provided to Kpler under or in connection with this Master Agreement and the Order to any such subcontractor or service provider. Kpler shall in all cases act as principal in respect of this Master Agreement and the Order and shall at all times remain responsible for all acts and omissions of its subcontractors and service providers as if they were its own.
19.10 Counterparts. This Master Agreement and the Order may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Counterparts may be executed by PDF or other electronic means of communication, and each of which shall be of the same effect, validity and enforceability as manually executed signatures to the extent and as provided for under applicable law.
20. Governing law and jurisdiction
20.1 The governing law that will apply to any dispute or claim arising out of or in connection with this Master Agreement and Order or their subject matter or formation (including non-contractual disputes or claims) and the courts that have jurisdiction over any such dispute or claim shall depend on the Kpler entity identified in the Order Form.
Appendix A to Master Agreement – Kpler’s Terms of Use
This Appendix A sets out Terms of Use existing as at the date of this Master Agreement.
* * * * * * * *
Kpler’s Terms of Use
This document sets out a non-exhaustive summary of some of the key terms governing your use of the products and services that Kpler makes available (the “Services”) and the data, information, reports, written content and/or structured and unstructured data that is made available through this Service (the “Data”) on Kpler’s website www.kpler.com and/or any related platforms and/or apps, including MarineTraffic (the “Kpler’s Platforms”).
These Terms of Use are entered into by and between the user (“you”, “your”) and Kpler Holding SA and its affiliates (collectively “Kpler”, “we”, “us” or “our”). You can find more details about us at Kpler Company. If you work for, or are engaged by, an organisation that has entered into an arrangement with Kpler for the provision of one of the Services, then the contract governing that arrangement will set out additional terms and conditions governing the use of those Services and the Data. Please make sure you understand those additional terms and conditions and comply with them by speaking to the relevant person within your organisation.
By using the Service(s), you accept and agree to be bound by the following special terms and conditions (the "Terms of Use"). By visiting Kpler’s Platforms or using the Service, you accept the following Terms of Use in full. Kpler may update the Terms of Use at any time. All changes shall be effective once notified to you and/or upon posting on the Kpler’s Platform(s). Your continued use of the Services following any changes of the Terms constitutes your acceptance of and agreement to be bound by the Terms of Use as modified.
At any time, if you disagree with the Terms of Use, you should immediately discontinue the use of the Services.
1. Use of the Services and/or Data
● You must at all times:
o not use the Services and/or Data for illegal, deceptive, misleading or unethical purpose or otherwise in any manner inconsistent with this Terms of Use or which may be or may be construed as being detrimental to the reputation of Kpler, even in an indirect way;
o use the Service and/or Data in accordance with all applicable laws and regulations;
o except as expressly agreed by Kpler in writing:
▪ not (attempt to) download, reverse engineer, modify, aggregate or decompile the Data or any software contained in Kpler’s Platforms, or create derived data from the Data, in any way;
▪ not copy, (sub)licence, (re)sell, reproduce, duplicate or publish the Service or the Data or any other Kpler’s data available on Kpler’s Platforms; and
▪ not transfer, forward or make available any of the Service and/or Data to any person who is not allowed to access and use the same, or “mirror” such Data on any other server;
o not attribute the Service and/or Data to any person other than Kpler;
o not remove any copyright or other proprietary notations from the Data and/or any other content presented anywhere on Kpler’s Platforms;
o not use the Service and/or Data as part of (or in the development or operation of) any financial, investment or other products, indices or instruments;
o not use the Data in any advertising or marketing, except where Kpler has given its prior consent;
o not engage in web scraping on Kpler’s Platforms; and
o not modify or adapt (or attempt to modify or adapt) the Service and/or Data, including any application programming or web application interface that you use to access the Service and/or Data.
● You must not import or transfer to the Service and/or on Kpler’s Platforms, either directly or indirectly, any information or other content which is or may be:
o inaccurate, misleading, defamatory, obscene, abusive or offensive;
o in breach of any intellectual property right, privacy, publicity or any other rights of any third party; or
o damaging to the performance of the Services.
● You are obligated to promptly delete and purge any of the Data obtained through unauthorised means and/or at the end of your agreement with Kpler to use the Service and/or Data.
2. Key principles of the Services and/or Data
a) Ownership
● Any and all rights, title and interests in and to the Data, together with any documentation or other materials Kpler makes available through the Service and/or Kpler’s Platforms, including any intellectual property rights, are and shall remain the exclusive property of Kpler or its third-party licensors (if any). Except where we publish or make available our publications to the public at large (for example, on Kpler’s social media accounts), the Services and/or Data shall be Kpler’s Confidential Information. You are not entitled to reproduce, duplicate, copy, publish, sell, distribute or otherwise make available the Data (or any part of them) without our express and specific written permission.
● All trademarks appearing on the Kpler’s Platforms are property of Kpler and/or third parties, companies/ respective owners and are protected by European trademark laws, as well as by international treaties and conventions. Use of these trademarks is by all means prohibited.
b) Lack of Guarantee
● Whilst we take pride and care in the collation and production of the Data, the Services and the Data are provided on an “as is” and “as available” basis. Although Kpler strives to keep the information on Kpler’s Platforms accurate and up to date, the latter cannot guarantee the completeness or accuracy of the data provided through the Service (including but not limited to, in any possible form, such as images, video, text, graphics etc.).
● The Data provided have been published solely for informational purposes, without warranty of any kind, whether expressed or implied. The display, the creation of derived data, and internal distribution of Data through the Service within your organisation are solely permitted for research and internal business purposes. Any other internal or external dissemination of the Data is strictly prohibited, except as expressly indicated in these Terms of Use or any other contractual agreement with Kpler. Except as expressly agreed by Kpler in writing, commercial use of any Kpler’s data gathered through this Service is prohibited and shall require obtaining a licence from Kpler and/or our third party licensors (if any).
● Kpler reserves the right to change the Data from time to time, in accordance with its methodologies, policies and procedures.
● No representation, warranty, assurance or undertaking (express or implied) is or will be made, and no responsibility or liability is or will be accepted by us, or by any of our respective officers, employees or agents, in relation to the adequacy, accuracy, completeness or reasonableness of the Data. You acknowledge that the Service is subject to variations and uncertainties. Kpler does not guarantee the absolute accuracy of the Data and recommends using it as a reference rather than an absolute measure. All such responsibility and liability are expressly disclaimed to the maximum extent permitted by applicable law. In particular, the Service should not be relied on as trading, investment, tax, legal, financial or any other form of advice or guidance; nor do they take account of any individual circumstances that may apply to you or the organisation you work for.
c) Reliance
● Nothing in the Service or the Data constitutes, or may be construed as constituting, an inducement, offer, recommendation or solicitation, as applicable, to buy, sell, hedge, hold or otherwise trade in a commodity or particular type(s) of commodity.
● You are solely responsible for all decisions, acts and omissions that you make or undertake that take account of, or that are based or rely on the Service and/or Data. Any actions undertaken by you based on the information provided on Kpler’s Platforms do not create any liability of Kpler. You visit Kpler’s Platforms at your own initiative and risk.
● Where the Data or Services refer to historic or prevailing trends or performance, or to future projections, forecasts, estimates or predictions (including forward looking statements), no representation, warranty, assurance or undertaking is given by Kpler (i) that those historic or prevailing trends or performance will in any way guarantee or predict future results; or (ii) as to the probability, reliability, achievement or reasonableness of those future projections, forecasts, estimates or predictions (including forward looking statements).
● Future projections, forecasts, estimates or predictions (including forward looking statements), in particular, may be based on certain assumptions and/or reflect Kpler’s expectations, predictions and estimations and may therefore be subject to a range of uncertainties, unknowns and/or risks that may mean that the actual, real life events or results differ significantly. Reliance should therefore never be placed on such future projections, forecasts, estimates or predictions (including forward looking statements).
d) Access
● Kpler aims to maintain the availability of Kpler’s Platforms, but it cannot guarantee continuous, uninterrupted, error-free, or virus-free provision of the Service. We assume no liability for unavailability, interruptions, errors, or viruses. You are responsible for making the necessary arrangements to access Kpler’s Platforms.
● You are also responsible for ensuring that all individuals accessing Kpler’s Platforms through your internet connection are aware of and shall comply with these Terms of Use and any other applicable terms and conditions.
3. Kpler’s liability
● In no event shall Kpler, or any of its respective officers, employees or agents, be held liable for any direct, indirect or consequential damages or loss arising out of or in any way connected with the utilisation or dependence upon the Data or any data provided on Kpler’s Platforms. For the sake of clarity, Kpler shall not be liable to any of its users for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with the use of, or inability to use, the Kpler’s Platforms or use of or reliance on any Data.
To the maximum extent permitted by applicable law, Kpler excludes all liability for indirect, incidental, special, punitive, consequential or exemplary loss or damage arising out of or in connection with this Service as well as for loss of profits, loss of sales, loss of business, loss of contract, loss of opportunity, loss of revenue, loss of anticipated savings, loss of technology, business interruption, wasted management time, loss of, destruction of or damage to data and/or loss of or damage to business opportunity, goodwill or reputation, in each case arising out of or in connection with this Service.
This disclaimer of liability encompasses any claims for damages, whether arising from contract, tort, negligence, strict liability, or any other legal theory. For the sake of clarity, the Terms of Use do not exclude or limit our liability for death or personal injury resulting from our negligence, nor for fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under applicable law.
● Subject to any pre-existing contractual relationship between you and Kpler, to the extent permitted by law, Kpler disclaims all conditions, warranties, representations, or other terms that may be implied, whether express or implied, in relation to Kpler’s Platforms, and/or any data provided through these means.
● Kpler disclaims any liability for losses or damages resulting from a virus, distributed denial-of-service attack, or other technologically harmful materials that may compromise your computer equipment, computer programs, data, or other proprietary material because of using the Kpler’s Platforms or accessing linked websites.
4. Links
● Where as part of the Service we provide hypertext links to other websites or contacts, we do so for information purposes only and such links do not constitute an endorsement, sponsorship, affiliation or recommendation by us of any products or services in such sites. You use such links entirely at your own risk and we accept no responsibility for the content or use of such websites or for the information contained on such sites (including any website through which you may have gained access to the site).
● The Services may include links to websites or resources operated by third parties. It is strongly advised that you thoroughly review the terms of use and privacy policy of any linked third-party website before providing any information or utilising its products and services.
● Kpler absolves itself of responsibility for the information found on websites linked to Kpler’s Platforms. The inclusion of such links should not be construed as an endorsement by Kpler of the linked websites. Kpler excludes all liability for any loss or damage arising from your use of these linked websites.
● In addition, given that Kpler lacks control over such websites and resources, you explicitly acknowledge and agree that Kpler bears no responsibility or liability for the content, products, or performance of these third-party websites and resources. By accepting these Terms of Use, you hereby waive any irrevocable claims against Kpler in relation to such websites and resources. Kpler retains the right to terminate any link at its discretion without prior notice. The provision of a link to another website or resource does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by Kpler with that website or resource, nor with any products or services offered therein.
5. Services Specifications
a) Insight and Maritime News
● The Data made available through this Service is for general background information (and, sometimes, promotional) purposes only and you may use and refer to such Data solely for general background information (or, where applicable, promotional) purposes in connection with your internal business purposes.
● We are not under any obligation to update or revise our publications (or any part of them), including any opinions, suggestions, views, recommendations and other statements in our publications, even where we become aware that something has, or may have, changed. Nor are we under any obligation to inform you of such matters. Any opinions, suggestions, views, recommendations and other statements set out in our publications are solely those of the author(s) at the point in time when the relevant publication was first prepared and may be subject to change.
b) Emissions Intelligence
● Emission data, rating / scoring of any assets, provided through this Service are provided on an “as is” basis. Consequently, Kpler cannot be held responsible for any inaccuracies of the Data provided through this Service.
● We are not a vetting organism and have no association with any authority or certifying body. As a result, the Data provided through this Service shall not be treated as such and Kpler cannot and shall not be held responsible if any third party uses this Data to make any decisions concerning you or the company you work for.
● If you deem Data to be inaccurate or outdated, you may initiate a request for information update. To commence such a request, you are required to furnish us with undisputed valid proof and documentation substantiating your assertion of inaccuracy, as any alteration without substantiating documentation might expose Kpler’s accountability.
c) Risk & Compliance
● Risk & Compliance data, rating / scoring of any assets, provided through this Service are provided on an “as is” basis. Consequently, Kpler cannot be held responsible for any inaccuracies of the Data provided through this Service.
● Kpler does not warrant that the Data provided through this Service contain all maritime related datasets or other relevant data existing worldwide.
● If data is not accurate, please contact our support team through: rc@kpler.com.
d) MarineTraffic - Fleet Management and Container Tracking
● By using this Service, you grant us a non-exclusive, worldwide, perpetual, transferable, irrevocable and royalty-free licence to use, store, process, reproduce, modify, anonymise and aggregate the maritime related datasets you are adding on Kpler’s Platforms for the purpose of creating derived works, improve our Services and/or Data, and refine our internal models and Data, provided such Data cannot be used to identify you. We may also combine or incorporate your data with or into other similar data and information available, derived or obtained from other customers, users, or other sources.
● Kpler does not warrant that the Data provided under this Service contain all nautical navigation or other relevant data existing worldwide.
● At Kpler, we respect the privacy of all our customers and users, and we are committed to data protection compliance. Kpler’s Privacy Notice provides detailed information about how we collect and process your personal data through your use of our Services.
e) MarineTraffic - Ship Tracking and Data Services
● The provided information on vessels position and identity, in particular, originate directly from the vessels, which transmit this information through publicly accessible radio frequencies, according to the 'Automatic Identification System' (AIS). The information collected and published may contain errors, due to the intrinsic limitations of radio communications (e.g. limited coverage, interference, attenuation, special weather conditions etc), due to erroneous configuration of the AIS devices on board, due to negligent data entry by a vessel’s crew, due to erroneous position received by the vessel’s GPS and due to other factors beyond the control of Kpler. Furthermore, vessel positions may be up to one hour old or incomplete. Data is provided for informational reasons only and is not related by any means to the safety of navigation.
Consequently, Kpler, the administrators of Kpler and their partners cannot provide any type of guarantee neither are responsible for the correctness, validity, thoroughness and accuracy of that information published, nor for the suitability of their usage for purposes other than informational only.
● Kpler does not warrant that the Data to be provided under this Service contain all nautical navigation or other relevant data existing worldwide.
● You may not use, promote or sell any products or services which contain the Data to any individual or entity, which is owned, controlled or associated with a proscribed country (or to any sanctioned country) or any individual or entity or sanctioned country with any history of jeopardising vessel safety.
f) Historical Data
● Kpler warrants that (a) it has all necessary right and power to sell the Historical Data, (b) to the best of its knowledge the Historical Data does not infringe the proprietary rights of any third party or violate applicable laws and/or regulations, (c) it shall promptly inform you if it receives communications that the provision of the Historical Data infringes any proprietary rights or applicable laws and/or regulations, and (d) it shall make reasonable commercial efforts to ensure the Historical Data is accurate.
● Except as expressly agreed by Kpler in writing, you shall not copy, reproduce, republish, recompile, redeliver, decompile, disassemble, reverse engineer, distribute, translate, publish, display, modify, upload, post, transmit, enhance or create derivative works from, or in any other way create a misimpression or confusion among users with respect to sponsorship or affiliation or exploit in any way material from the Historical Data.
● You shall refer to Kpler as the supplier of the Historical Data purchased and used as a result of such purchase, in all reports, analyses or documents in which or for which the Historical Data will have been used and/or incorporated. For this purpose only, you may use Kpler’s logos and/or trade names.
● You may not sub-sale the Historical Data to individuals or entities. In the event of a permitted sub-sale to your clients under the special terms and conditions herein, you shall use commercially reasonable means to ensure that your clients shall avoid potential misuse or unauthorised access to the Historical Data. You acknowledge that any access to the Historical Data is subject to applicable international telecommunications and maritime laws and regulations and in the interest of the international community.
g) Upload of Photos and Copyrights
● You may wish to upload and submit photo(s) to a Kpler’s Platforms (the “Photo(s)”), and by doing so you accept to be bound by the Terms of Use. At any time, if you disagree with these Terms of Use, please do not upload your Photo(s) and/or immediately remove your existing Photo(s) from the Kpler’s Platforms.
● You acknowledge and agree that either (i) you are the photographer or the rightful owner of the copyrights associated with the Photo(s); or (ii) you have the express consent of the copyright owner to the Photo(s) to licence it to third parties, such as us, in accordance with these Terms. At any time, you shall maintain full copyright interests of the Photo(s).
● You acknowledge that your Photo(s) and/or other content submissions are non-confidential and non-proprietary.
● By uploading the Photo(s), you represent and warrant that you have the legal right to grant the licence specified in these Terms of Use and that the use of the Photo(s) by Kpler will not infringe upon the rights of any third party.
● By uploading the Photo(s) to our Website and/or App, you grant us a non-exclusive, worldwide, perpetual, transferable, irrevocable and royalty-free licence to use, store, process, reproduce, modify, distribute, display, publish the Photo(s) and create derived works on any Kpler’s Platforms and/or Kpler’s social media accounts for promotional, operational and commercial purposes.
● The grant of licence expressly includes all known and unknown forms of offering on the Internet, in particular the possibility of integration into paid online services and websites as well as within the freely accessible Internet. In particular, you grant us the following non-exclusive and worldwide rights of use:
(a) the right of reproduction, making available to the public and distribution, i.e. the right to reproduce the work without limitation and to make it available to the public or to reproduce it publicly, by any technical means, in particular by digital incorporation within the framework of the Kpler’s Platforms and/or Kpler’s social media accounts;
(b) the right to make the Photo(s) available on demand, i.e, the right to store the Photo(s), to make them available to the public, to transmit them in any database, electronic data network or telecommunications service network;
(c) the right to edit, i.e. the right to transform and process the Photo(s) in any way;
(d) the right to advertise, i.e. the right to use the Photo(s) to promote our services, also in other media and outside the Internet, namely on television and in print media, but not to promote third party products.
(e) the right to use the Photo(s) for commercial purposes.
● You understand that visitors to the Kpler’s Platforms and/or Kpler’s social media accounts may be able to download or repost the Photo(s) and as a result the Photo(s) may be used for other purposes and that we will not have any obligation to prevent or police, and will not be liable for, any such downloading and reuse by a third party.
● This licence does not transfer ownership of your Photo(s) to Kpler. You retain all rights, title, and interest in the Photo(s). We honour and appreciate your creative contributions. Your User Name will always be prominently displayed alongside each of your Photo(s), ensuring proper attribution for your work or for the third party work on which you have the express consent of the copyright owner.
● In case the Photo(s) is/are made explicitly available in the public domain, without copyrights, please refer to its source.
● We respect the intellectual property rights of others, and do not permit, condone or tolerate the use of Photo(s) that infringe copyright.
Should you become aware of or suspect that our usage of any Photo(s) is a copyright infringement, please notify us by sending an email to our team here.
● Therefore, we reserve the right to reject uploading of the Photo(s) and/or remove the Photo(s) from the Kpler’s Platforms at our sole discretion. Any Photo(s) for which we reasonably believe you do not own the copyright, will be subject to rejection or removal. We reserve the right to ban individual users from the Kpler’s Platforms for copyright infringement and/or undertake any other measure(s) we deem necessary.
● You may also request the removal of the Photo(s) from the Kpler’s Platforms and/or Kpler’s social media accounts by contacting our team here. We will make reasonable efforts to promptly comply with such requests.
● For more information on our privacy policies, please refer to our Privacy Notice.
● We greatly appreciate any content and Photo(s) our registered users submit and share with us and the user community. If you have any questions or concerns regarding these Terms of Use, please contact our support team here.
6. Connect with us
● If you require technical assistance or have any other support-related inquiries regarding Kpler and its Services and/or Data, please do not hesitate to contact us using the following information:
Technical Support:
For technical support, our dedicated team is available to assist you. You can reach our technical support team through: support@kpler.com
General Support:
For general support inquiries or any other non-technical assistance, please contact our support team through: info@kpler.com
● If you deem specific information on Kpler’s Platforms and/or Kpler’s social media accounts to be inaccurate or outdated, you may initiate a request for information update. To commence such a request, you are required to furnish valid proof and documentation substantiating your assertion of inaccuracy.
