TERMS & CONDITIONS
FOR CLIENTS USING SA PLATFORM
Latest Up-Date: 1 July 2020
These terms and conditions as set forth below (“Terms”) govern Your access to and use of the SA Platform that is provided by Survey Association of 1914 Ltd. A/S, a limited company registered in accordance with the laws of Denmark, with Company No. 55262519 and having its registered address at Købmagergade 54,1, 1150 Copenhagen K, Denmark, or any of its successors (“Company”). The SA Platform consists of website, including any subdomains thereof, and any other websites through which the Company makes the SYVR Services available (collectively, “Website“), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application“) and all associated services (collectively “SA Services“).
IMPORTANT NOTICE
You acknowledge and agree that the Company is a Surveyor Services company (as defined later) as such. In order to use the SA Platform, You must agree to the Terms that are set forth below by ticking off the box as provided on the SA website. Alternatively, Your use of the SA Platform constitutes an implied approval of these Terms.
DEFINITIONS
“Company” means Survey Association of 1914 Ltd. A/S, a limited company registered in accordance with the laws of Denmark, with Company No. 55262519 and having its registered address at Købmagergade 54,1, 1150 Copenhagen K, Denmark, or any of its successors.
“Company Data” means all data related to the access and use of the SA Services hereunder, including all data related to Users (including User Information), all data related to the provision of Surveyor Services via the SA Services and the SA App, and the Member ID.
“Device” means Your Device accessing the SA Platform, as the case may be.
“Instructing User” means You as a company or a legal entity, who is a registered end user of SA Platform making the appointment by means of the SA App for obtaining Surveyor Services.
“Member”/ “Members” means an independent surveyor or a company of surveyors providing Surveyor Services (as defined below) on SA Platform as registered member.
“Parties” mean parties to these Terms, i.e., You and the Company collectively.
“Surveyor Fee” means the remuneration the Member charges for the agreed Surveyor Services that is based on the fee determined by the Member on the SA Platform.
“Surveyor Services” mean services provided and facilitated by the Member for Instructing User in connection with and through the SA Platform (see below) related to a survey or examination of marine vessels. The details of the requested Surveyor Services shall be defined between the Company and Instructing User in each case separately.
“SA Application” is any mobile, tablet and other smart device applications, and application program interfaces through which the Company makes the SA Services available for the purpose of seeking, receiving and fulfilling on demand requests for Surveyor Services by Instructing Users, as may be updated or modified from time to time.
“SA Database” means a list of independent surveyors and/or surveyor companies that are registered Members of SA Platform for the purpose of seeking, receiving and fulfilling on demand requests for Surveyor Services by Clients and/or Instructing Users.
“SA Platform” is the collective name for SA Application, SA Services and SA Website together providing an online marketplace that enables the Members offering Surveyor Services to seek, receive and fulfill on-demand requests for Surveyor Services, and Instructing Users in need of Surveyor Services to communicate and transact directly with the Members on the SA Platform for instructing a suitable Member to render the required Surveyor Services for the Instructing User.
“SA Services” are the services provided through SA Application, SA Website and any additional services that may be introduced from time to time and that are provided on the SA Platform.
“SA Website” refers to the website, including any subdomains thereof, and any other websites through which the Company makes the SA Services available.
“Terms” refer to terms and conditions as set forth herein.
“Territory” means the geographical areas in which the Surveyor Services are provided and/ or rendered.
“Users” refer to Instructing User(s) and Member(s) collectively.
“You” refers to you/ your company as a user of the SA Platform.
Terms for processing personal data are set out in the Data Policy in Schedule 1, attached below.
1. Scope of Services
1.1 The SA Platform is an online marketplace that i) enables registered Members to offer Surveyor Services and to seek, receive and fulfill on-demand requests for Surveyor Services, and ii) provides Instructing Users in need of Surveyor Services to seek and identify Members for instructing a suitable Member to render the required Surveyor Services for the Instructing User. The SA Platform enables communication between the Users in order to identify the most suitable Member to carry out the requested Surveyor Services. Such communication includes:
i) the relevant information leading to and up to the execution of the said Surveyor Services, and
ii) subsequent status updates between the Instructing User and the Member rendering the agreed Surveyor Services concerning the agreed and on-going Surveyor Services.
1.2 As soon as the Company has confirmed the appointment for the Surveyor Services by the Instructing User on the SA Platform, the Company and Instructing User shall enter into a separate contract with each other providing the terms and conditions for the agreed Surveyor Services (“Agreed Service”). The Users are responsible for providing the accurate and up-to-date contact details to each other including any emergency contact numbers or communication devices to ensure clear communication lines. The Company cannot be held responsible for inaccurate contact details of the Users.
1.3 Any and all payment processing services through or in connection with Your use of the SA Platform are facilitated by SA and SA acts as a limited payment collecting agent on behalf of the Members for the Agreed Service. It is to be noted that the Surveyor Fee, after having been received by SA from the respective Instructing User, is remitted to the respective Member by SA and Members shall have no right of recourse in respect of the Surveyor Fee to such Instructing User.
2 Representations and Liabilities
2.1 As a User of SA Platform for using of the Surveyor Services You are liable to comply with any and all applicable statutory and non-statutory laws and regulations in Your local jurisdiction as well as in the jurisdiction in which You purchase or otherwise use the Surveyor Services. In addition to that, You represent and warrant that You will perform Your duty of care and observe all the safety, health, environmental and other regulations related to the Agreed Service and/or otherwise Your use of the SA Platform.
2.2 Insurance: The Company’s limitation of liability are those stipulated in London Terms of Engagement of 2013 for Surveyors.
2.3 Legal Advice: If you have questions about how local laws apply to provision of the Surveyor Services through SA Platform at Your Territory and or about the applicable insurance requirements at Your Territory, or are in doubt, You should always seek legal or other professional guidance.
2.4 Anti-Corruption: The Parties agree that, at all times throughout the course of Your use and the Company’s provision of the SA Platform they comply with and that they take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence will comply with all applicable anti-corruption legislation and have procedures in place that are, to the best of their knowledge and belief, designed to prevent the commission of any offence under such legislation.
2.5 SA Platform is provided on “As Is” and “As and When Available” basis. Whilst the Company shall use all reasonable skill and care in the creation, supply and operation of SA Platform, the Company provides no warranties nor can guarantee the continuous and uninterrupted availability and accessibility of SA Platform or its suitability, accuracy, free from fault, viruses or other impairing or harmful components or fitness for any purpose. The Company cannot be held responsible for any loss, either direct or in-direct, for loss of business, interruption in communication affecting the Surveyor Services or similar incident due to non-availability of internet or other wireless/ electronic communication which is beyond its control e.g. due to hacking or cyber-attack, severe weather, fire or explosion, civil disorder, war, or military operations, natural or local emergency, anything done by government or other competent authority or industrial disputes of any kind.
2.6 The Company shall run commercially available virus detection and correction software and shall endeavor to ensure that errors are not service affecting and to correct reported faults as soon as it reasonably can. If a fault occurs, You should report the fault to us at: administration@ surveyassociation.com. The Company may restrict the availability of SA Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of the servers for SA Platform, or to carry out maintenance measures that ensure the proper or improved functioning of SA Platform from time to time. The Company makes its best efforts to inform the Users for any up-coming maintenance work or other temporary interruptions of services caused by the Company on SYVR Platform in due time or as soon as it is reasonably possible.
2.7 Enhanced Duty of Care with regard to Cyber Security and SA Platform: In order to minimize any potential abuse and/or hacking SA Platform each of the Member and Instructing User shall use enhanced duty of care with regard to keeping the password in safe custody and not to disclose that to any third nor unauthorized parties. You must observe the recommended length and form for the password as well as recommendations for changing the password on a regular basis.
2.8 Should the password be lost, stolen or otherwise be beyond Your control granting the access to SA Platform, You are obliged to contact the Company, as soon as reasonably possible upon becoming aware, at: administration@surveyassociation.com in order to block the access to SA Platform by any unauthorized persons and mitigate any potential damage to SA Platform and its Users. Non-observation of this obligation gives the Company a right to block Your access to the SA Platform. Furthermore, should SA Platform be abused, hacked, impaired, misused or otherwise damaged or so, and this has been due to Your negligence or willful misconduct in observing the above-stated enhanced duty of care, the Company will hold You responsible for any damages of the consequences of such unauthorized use caused to SA Platform and its Users.
3 Devices
3.1 The Company does not provide, supply, procure nor support any electronic Device, nor internet access to You and You will be solely responsible for procurement, maintenance and necessary and/or recommended up-dates of the devices enabling You access to SA Application and SA Platform. The compatibility and uninterrupted access from Your device to SA Platform lies under Your sole responsibility. You are also responsible that the device You access SYVR Platform is free from viruses and does not cause or spread any virus, malware, ransomware, bug or similar harm to SA Platform or its Users.
4 Property Rights and Data Protection
4.1 You understand and agree that the SA Platform is the sole intellectual property of the Company and that You undertake and warrant that You will at all times respect the copyrights, trademarks and/or intellectual property rights of SA in using the SA Platform and in all other activities, whether such activity is conducted as Users or not.
4.2 Protection and Processing of Personal Data: The terms for collecting, processing, using, keeping and storing of Your personal data are stated in SA Data Policy which is attached as Schedule 1 in these Terms and binding to all Parties.
5 Term and Termination
5.1 You are bound by these Terms as from the date of Your approval of these Terms. Alternatively, Your use of the SA Platform constitutes an implied approval of the Terms and shall continue until terminated as set forth herein.
5.2 The Company may block and deny Your access to the SA platform in the event You no longer qualify, under applicable laws or the standards and policies of Company, to use and/or purchase the Surveyor Services or as otherwise set forth in these Terms or if You are in breach of any of these Terms. In the last mentioned case the Company reserves its right to take a legal action against You.
5.3 Upon an event as described above on Cl 5.2, You shall have no access to SA Platform. Any outstanding payment obligations, Sub-Clauses 4.1, 4.2, and Schedule 1 as applicable shall survive the termination of these Terms.
6 Modification of Terms
6.1 The Company reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to the Terms, we will post the revised Terms on the SA Platform and update the “Last Up-Dated” date at the top of these Terms. Your continued use of the SA Platform will constitute acceptance of the revised Terms and are binding on You.
7 Liability
7.1 Neither the Company nor any other party involved in creating, producing, or delivering the SA Platform will be liable for any physical, incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use SA Platform, (iii) from any communications, interactions or meetings with other Users with whom You communicate, interact or meet with as a result of Your use of SA Platform, or (iv) from Your use of Surveyor Services whether or not the Company has been informed of the possibility of such damage or loss in that connection, even if a limited remedy set forth herein is found to have failed of its essential purpose. The limitations of damages set forth above are fundamental elements for using SA Platform.
7.2 The liability restrictions or exclusions under these Terms shall not apply in cases of deliberate default or gross negligence by the Company or its agents in operating the SA Platform. If any jurisdiction does not allow the exclusion or limitation of liability for the types of loss set out in Clause 8.1 above, liability is limited to the fullest extent permitted by law.
7.3 Notwithstanding the above, in no event whatsoever will the Company’s aggregate liability arising out of or in connection with this Agreement and/or from the use of or inability to use SA Platform, or interactions with any other Users, exceed USD500 (five hundred US Dollars) howsoever such liability may arise. Where one incident gives rise to claims by more than one User, Company’s liability to all Users arising out of such incident will be limited to USD10,000 (ten thousand US dollars), which will be shared between them pro rata.
7.4. Notwithstanding the above, for Surveying Services, the Company limitation of liability shall be as stipulated in London Terms of Engagement of 2013 for Surveyors.
8 Assignment
8.1 The Company may assign or sub-contract all or any of the Company’s rights and obligations as provided under these Terms to any other company or legal entity, whether an associated company or a third party.
9 Entire Agreement
9.1 These Terms, including all Supplemental Terms, amendments as may be made from time to time and Schedules, constitute the entire terms and understanding of the Parties with respect to its subject matter and replace and supersede all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”
10 Severability
10.1 To the extent any provision of these Terms may be held repugnant to law, such provision shall be invalid. However, such invalidity shall affect such clause(s) only whereas the remainder of these Terms shall survive to the fullest extent possible.
11. Law and Jurisdiction
11.1 These Terms shall be governed by and construed in accordance with Danish law.
11.2 Any disputes arising under or in connection with these Terms and which cannot be settled amicably shall be referred to the Danish Maritime and Commercial High Court.
SCHEDULE 1
SA TERMS FOR DATA PROCESSING
Latest Up-date: 1 July, 2020
In this Data Processing Policy (“Data Policy ”) the terms “Personal Data”, “Data Subject”, “Controller”, “Processing” and “Processor” have the same meanings as in the General Data Protection Regulation (EU) 2016/679) (“GDPR”)
“Data Protection Legislation” means the Danish Data Protection Legislation and the GDPR and any other directly applicable European Union regulation relating to privacy.
When this Data Policy mentions “We,” “Us,” or “Our,” it refers to the Company. Terms & Conditions for SA Platform (“Terms”) separately govern Your use of the SA Platform. All capitalized terms have the meaning set forth in the Terms unless otherwise defined in this Data Policy.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and the Company is the Processor.
1. Personal Data and Data Processing
1.1 In the course of providing the SA Services to the Client pursuant to the Terms, the Company may Process Personal Data on behalf of the Client. The Company agrees to comply with the provisions as set forth below with respect to any Personal Data processed for the Client in connection with the provision of the SA Services.
1.2 Processor processes, on behalf of the Controller, the general categories of Personal Data such as name, phone number, e-mail- and other contacting details.
1.3 The Processor processes, on behalf of the Controller, the Personal Data for communicating about the SA Services with the Users on the SA Platform.
1.4 The processing by the Processor, on behalf of the Controller, of the Personal Data includes activities such as storage of Personal Data, ensuring the accessibility, integrity and confidentiality of the systems and providing communication possibilities to the Controller’s Users of the SA Platform.
1.5 The Processor is responsible for storing the Personal Data within the EU/EEA and not transferring the Personal Data to countries outside the EU/EEA without the prior written acceptance of the Controller.
2 Instructions and confidentiality
2.1 The Processor may only process the Personal Data in compliance with documented instructions from the Data Controller, including transfer of Personal Data to any third country or international organisation. If, in exceptional cases, the Processor is instructed to process Personal Data, including transferring Personal Data to a third country or an international organisation, and this does not follow from the instructions of the Controller but is pursuant to EU or member state law to which the Processor is subject, then the Processor must notify the Controller of such legal requirements before commencing the processing unless such notification is prohibited on important grounds of public interest.
2.2 The Processor may not process the Personal Data for its own purposes, unless explicitly agreed to in this Policy.
2.3 The Processor is bound by confidentiality and may not, without authorisation, copy, disclose or use the Personal Data. The Processor must ensure that employees authorised to process Personal Data have assumed a contractual confidentiality obligation or are subject to a statutory obligation of secrecy.
2.4 The Processor must ensure that access to the Personal Data is limited to employees with a work-related need.
3 Security etc.
3.1 To protect the Personal Data, the Processor must implement appropriate technical and organisational measures in such a manner that the processing meets the requirements set out such measures are determined and adjusted on a regular basis with due consideration for the current technical level, expenses, and the nature, scope, context and purposes of the processing and the risks to the rights of natural persons.
3.2 The Processor must ensure that the Personal Data are deleted from every IT-system, archive etc. when continued storage no longer serves a fair purpose and as instructed by the Controller.
3.3 The Processor must inform and train relevant employees on confidentiality relating to the processing of Personal Data and must ensure that the processing is in compliance with the purposes of this Agreement and the instructions of the Controller.
3.4 In addition, the Processor takes, as a minimum, the following measures:
3.4.1 Physical security: When equipment and mobile units are not used, the equipment and the units must be locked away and/or locked.
3.4.2 Back-up copies: The Personal Data is backed up routinely. Copies of the Personal Data must be stored separately and with due care in such a manner that the Personal Data can be restored. Instructions to delete Personal Data must include deletion of Personal Data backed up.
3.4.3 Control of access: Access to the Personal Data is limited by way of a technical control of access. User-ID and password must be personal and may not be assigned at any time. Procedures must be in place for the granting and removing of access.
3.4.4 Logging: A log or similar over access to and processing of the Personal Data must be kept. A register must be available showing those persons who have had access and the processing the individual has conducted.
3.4.5 Communication of data: Communication of the Personal Data must take place, using secure communication lines. Personal Data that are transferred outside a closed network controlled by the Processor is protected by encryption.
3.4.6 Destruction of hardware: When equipment or mobile units containing Personal Data are no longer used to process Personal Data, the Personal Data is be permanently deleted from the equipment, ensuring that the data cannot be restored.
4 Sub-processors
4.1 The Processor is, subject to clause 5.3, hereby authorised to use sub-processors without further written approval from the Controller, provided that the Processor notifies the Controller in writing of the identity of the potential sub-processor (and its potential sub-processors) before entering into agreement with relevant sub-processors, thus enabling the Controller to object to the use of the sub-processor.
4.2 Notification and the option to object pursuant to clause 5.1 must be given accordingly in case of any planned changes concerning supplement, replacement, or discontinuation of the use of sub-processors. The Processor must receive the objection no later than seven days after receipt thereof by the Controller.
4.3 It is a condition for appointing a sub-processor that the Processor and the sub-processor agree in writing that the sub-processor shall be subject to the same data protection obligations and contractual terms as set out in this Policy, including that the sub-processor shall implement appropriate technical and organisational measures in such a manner that the processing of the Personal Data meets the requirements of the GDPR.
4.4 The Processor shall be liable to the Controller for any actions and omissions of sub-processors in the same manner as the Processor shall be liable for its own actions and omissions.
5 Assistance to the Controller
5.1 The Processor must assist the Controller to ensure that all obligations under Art. 32-36 of the GDPR and other applicable data protection and information security legislation are met, i.e. security measures, notification of supervisory authorities, notification of individuals, preparation of data protection impact assessments and prior consultation of the supervisory authorities.
5.2 Taking into account the nature of the processing, the Processor must, to the extent possible and by means of appropriate technical and organisational measures, assist the Controller in meeting the Controller’s legal obligations to respond to requests for exercising the individuals’ rights laid down in Chapter III of the General Data Protection Regulation.
5.3 The Processor must notify the Controller of any personal data breaches.
5.4 The Processor must immediately notify the Controller if the Processor believes that an instruction violates the GDPR or other data protection provisions in other EU law or member states’ national law.
6 Demonstration of compliance, audits etc.
6.1 The Processor must, upon request and without separate remuneration, make all information necessary available to the Controller to demonstrate compliance with the obligations of this Agreement, the GDPR, and other special legislation.
6.2 The Processor must provide means and contribute to audits, including inspections performed by the Controller or auditors authorised by the Controller, the Danish public authorities, or another competent jurisdiction. The relevant auditor must be subject to confidentiality obligations, either under an agreement or law.
7 Term and termination
7.1 This Policy shall take effect when entered into the Terms and is subject to Clause 6 of the Terms.
7.2 Upon termination of the Terms, the Processor shall return all Personal Data to the Controller. Thereafter, the Processor shall delete all existing copies of the Personal Data immediately, unless EU or member state law prescribes requirements for the continued storage of the Personal Data.
7.3 If, following the termination of the agreement provided in the Terms, there is uncertainty as to whether the Processor has deleted all the Personal Data, the Controller may request the Processor to, request an auditor’s statement stating that the Processing no longer takes place and that the Personal Data have been deleted. This shall be on the cost of the Controller.