Terms & Conditions

These terms govern the use of the Ankor software and the relationship between Central Agencies, Retail Agencies and Ankor Software Pty Ltd in relation to the Ankor software.

Subscription details and defined terms not set out in the Main Terms are in Schedule 1 (Central Agency Subscription Details) and Schedule 2 (Retail Agency Subscription Details).

1. Definitions and Interpretation
1.1

The following defined terms shall have the following meanings ascribed to them:

“Ankor” means Ankor Software Pty Ltd.

“Ankor Information” means any and all information, documents, numbers, software, images, video and other materials, whatsoever and howsoever recorded, delivered or described, which the Subscriber may receive or download from Ankor and/or the Ankor Site.

“Ankor Invoice” means an invoice or card payment request issued by Ankor to a Subscriber specifying some or all of the matters identified within schedules 1 and 2 of this Agreement and setting out any payment(s) required in accordance with Clause 4 and/or Clause 7.

“Ankor Site” means the online platform made available by Ankor to subscribing Central Agencies and Retail Agencies which provides, amongst other things, Listing Information in relation to Yachts.

“Booking Fee” means the fees charged by Ankor for fixtures agreed between Yacht owners and charterers by Central Agencies and Retail Agencies using the Ankor Site.

“Central Agency” means an agency/brokerage which has been appointed by the owner/manager of a Yacht as the central agency for that Yacht and is fully authorised to solicit Charters for the Yacht on behalf of the owner or, if no such appointment has been made, the Yacht’s manager or other person duly authorised to perform an equivalent function.

“Charter” means a charterparty, fixture or other arrangement for the use of a Yacht by a charterer, whatsoever and howsoever described or documented.

“Charter Manager” means an Individual User nominated by a Central Agency to have access to the Ankor Site in order to manage the Yachts which that Central Agency has made available for Charter.

“Data Protection Legislation” means all legislation relating to data protection and privacy to which each party is subject including any statute or statutory provision which amends, extends, implements, consolidates or replaces the same, and in particular to the extent applicable and without limitation, the Australian Privacy Act 1998 (Cth) (the “Australian Privacy Act”), the General Data Protection Regulation (EU) 2016/679 (the “EU GDPR”), the UK Data Protection Act 2018 (“DPA 2018”), the UK GDPR (which has the meaning given to it in section 3(10) (as supplemented by 205(4) of the DPA 2018), and any applicable superseding, supplementary, or replacement legislation, codes or guidance.

“Force Majeure” means any act or event beyond Ankor’s reasonable control, including without limitation governmental or regulatory change, poor weather conditions, health and safety risks (including those arising out of pandemic, epidemic or other public health emergency, howsoever described), strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or any failure of public or private telecommunications networks.

“GST” means a goods and services tax or similar value added tax levied or imposed under the GST Law.

“GST Law” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Individual Users” means the Primary Contact and any Retail Brokers nominated to have access to the Ankor Site by a Retail Agency or any Charter managers nominated to have access to the Ankor Site by a Central Agency.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the
right to sue for passing off, rights in designs, database rights, rights to use and protect the
confidentiality of, confidential information (including knowhow) and all other intellectual
property rights, in each case whether registered or unregistered and including all applications
and rights to apply for and be granted, renewals or extensions of, and rights to claim priority
from, such rights and all similar or equivalent rights or forms of protection that subsist or will
subsist now or in the future in any part of the world.

“Listing Information” means the information that a Retail Agency reasonably requires in order to fix a Charter of a Yacht for a client including but not limited to the Yacht’s booking calendar, specifications, high resolution colour photographs, crewing details and Charter rates subject always to any minimum requirements which may be stated on the Ankor Site or otherwise notified from time to time.

“Retail Agency” means an agency/brokerage seeking to fix Charters for clients who wish to charter Yachts.

“Retail Broker” means an Individual User nominated by a Retail Agency to have access to the Ankor Site in order to seek Charters for that Retail Agency’s clients and/or potential charterers.

“Services” means the provision of access to the Ankor Site and the provision of electronic listing services for Yachts via the Ankor Site to Subscribers.

“Subscriber” means a Retail Agency or a Central Agency which has entered into this Agreement with Ankor.

“Subscriber Package” means the Services which a Subscriber will receive from Ankor pursuant to its Subscription.

“Subscription” means the right of access to the Ankor Site and Ankor Information which a Subscriber has contracted to receive under the Subscriber Package.

“Yacht” means a pleasure boat, vessel or yacht.

1.2

Where a party to this Agreement comprises two or more persons, or two or more separate Subscriber entities enter into this Agreement together, all obligations shall be entered into (or be deemed entered into) by the Subscriber(s) on a joint and several basis. In those circumstances, references below to “Subscriber” in the singular shall include the plural.

1.3

Any words following the terms “including”, “include”, “in particular”, “for example” or any
similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4

A reference to a clause or schedule is to a clause of or schedule to this Agreement, but headings used in this Agreement are for convenience only and will not affect the interpretation of this Agreement.

1.5

An obligation not to do something includes an obligation not to permit or allow another person
to do it.

1.6

A “subsidiary” or “holding company” is to be construed in accordance with section 1159 of the
Companies Act 2006 and “associate”, whether used in the context of “associated company” or otherwise, shall have the meaning ascribed to it in sections 345, 937 and 1152 of the Companies Act 2006 whichever shall be in force at the time and whichever shall be the broadest).

2. Subscription and use of Ankor Information
2.1

In consideration of the payment of the Annual Price by the Subscriber in accordance with Clause 7, for the duration of the Subscription Term Ankor shall provide the Subscriber Package to the Subscriber.

2.2

Save for with the express prior written consent of Ankor, the Subscriber shall not use or authorise or enable the use of the Ankor Information for any purpose except as expressly permitted by this Agreement. Without prejudice to the generality of the foregoing, in no circumstances shall log on details for Individual Users be shared or distributed beyond that Individual User.

2.3

The Subscriber Package shall be made available electronically by Ankor and/or its associated
companies, entities and personnel, to the Individual Users. No Retail Broker may perform functions associated under this Agreement with a Central Agency. No Charter Manager may perform functions associated under this Agreement with a Retail Agency.

2.4

The Subscriber shall be responsible and liable for any and all actions of the Individual Users under or in connection with this Agreement and shall inform them of the terms of this Agreement.

2.5

The Subscriber shall use its best efforts to protect the goodwill and reputation of Ankor in relation to the Ankor Information and shall not commit any act or make any omission reasonably likely to harm the reputation or goodwill of Ankor and the Ankor name.

3. Ankor's Role, Rights and Liabilities
3.1

Ankor shall provide the Subscriber Package to the Subscriber in accordance with this Agreement.

3.2

Ankor may in its sole discretion share the application programming interfaces (“API”) for the
Ankor Site with appropriate Retail Agencies in order to further technological and commercial integration, but is under no obligation to do so and does not guarantee that API integration will be available to all Retail Agencies or across all technological platforms.

3.3

Ankor is not a party to any Charters and, to the extent permitted by law, undertakes and accepts no responsibility whatsoever in relation to the contractual and non-contractual relationships between Yacht owners, charterers, Central Agencies and Retail Agencies or any combination thereof.

3.4

Ankor continues to develop, expand and otherwise amend the Services and does not guarantee that any or all of the features of the Ankor Site will continue to be available throughout the Subscription Period. However, Ankor will use reasonable efforts to ensure that such changes to the Services will not disrupt the Subscriber’s use of the Services.

3.5

Any calculations or other information provided by Ankor or the Ankor Site in relation to the tax applicable to Charters, including but not limited to VAT and GST, is for guidance only. Ankor is not liable for any such calculation or information and Subscribers must not act in reliance on the same.

3.6

Ankor may from time to time provide suggested routes and itineraries for Charters on the Ankor Site. To the extent permitted by law, Ankor has no liability in relation to such routes or itineraries whatsoever and however arising.

3.7

Ankor may restrict or remove access to the Ankor Site for periods of time necessary for maintenance, upgrades and other operational requirements, including but not limited to responding to cyber security threats or attacks. Ankor does not warrant that the Subscriber Package and/or access to the Ankor Site will be available at all times and undertakes and, to the extent permitted by law, accepts no liability whatsoever in relation to such periods of downtime or inaccessibility.

3.8

Listing Information is provided by Central Agencies. Ankor does not warrant or represent that any Listing Information is correct, up to date or that the Yacht is otherwise in accordance with how it has been described, listed or otherwise advertised by a Central Agency, owner or other party responsible for the chartering of such Yacht. Retail Agencies and their clients enter into any and all Charters at their own risk.

3.9

Ankor shall not be liable for or in respect of any disputes or disagreements between some or all of any Yacht owners, charterers, Retail Agencies or Central Agencies which arise out of or are in any way related to the Subscriber Package or Ankor Information, save for in case of fraud, negligence or breach of this Agreement by Ankor.

3.10

The Subscriber shall hold Ankor and its subsidiary, holding and associated companies, including any directors, staff members, shareholders and agents, harmless and indemnify them in relation to any claim, whatsoever and howsoever described, advanced against Ankor by a client, associate of, shareholder in or intermediary related to that Subscriber, howsoever
described or affiliated, in relation to the Ankor Information and Ankor Site, including in relation
to legal fees and other associated costs. However, this indemnity will not apply to the extent that the relevant claim resulted from the fraud, negligence or breach of this Agreement by Ankor.

3.11

Notwithstanding anything else in this Agreement:

3.11.1 Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation
which cannot lawfully be excluded or limited. If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement or any other applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and Ankor is able to limit the remedy for a breach of the Non-Excludable Provision, then the liability of Ankor for breach of the Non-Excludable Provision is limited to one or more of the following at its option:

  • (a) in the case of goods, the replacement of the goods or the supply of
    equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the
    cost of having the goods repaired; or
  • (b) in the case of services, the supplying of the services again, or the payment
    of the cost of having the services supplied again;

3.11.2 Subject to Ankor’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by applicable law, Ankor’s liability under this Agreement and in connection with the Ankor Site, the Ankor Information and Subscriber Package, whether in contract or tort or otherwise, and including the liability of any subsidiary or holding or associated company or director, employee or shareholder thereof, whatsoever arising and howsoever described, and including in circumstances
where Ankor or any of the aforementioned have been negligent, shall in no circumstances exceed the lower of the Annual Price or GBP10,000, whichever is lower and in each case including any applicable interest and legal costs;.

3.11.3 Subject to Ankor’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by applicable law, Ankor shall have no liability to the Subscriber or any client, associate of, shareholder in or intermediary related to the Subscriber for any losses arising out of or in connection with Charters entered into on the basis of the Ankor Information, including but not limited to liability for loss of profits, delay, misdescription or otherwise, whatsoever and howsoever described,
and the Subscriber holds Ankor entirely harmless in relation to the same.

4. Central Agencies, Yachts and Listings
4.1

Central Agencies who are Subscribers are entitled to list Yachts on the Ankor Site. No Yacht may be listed more than once for Charter, including in circumstances where different Central Agencies are appointed in relation to the same Yacht.

4.2

Once a Charter has been concluded for a Yacht via a Retail Agency on the Ankor Site, the Central Agency is responsible for paying the Booking Fee. The Central Agency must ensure the Booking Fee is paid before the Charter takes place. If the Charter is cancelled or postponed then Ankor may, in its sole discretion, agree to a postponement or refund of the Booking Fee upon receipt of a written request by both the Retail Agency and Central Agency. Nothing in this clause 4.2 limits any guarantee in the Australian Consumer Law that protects the purchasers of goods and services, or any other rights or remedies that cannot be excluded by law.

4.3

A Central Agency may only list a Yacht if the following requirements are complied with and
warrants that such requirements are complied with when it concludes any fixtures for that
Yacht via the Ankor Site:

4.3.1 In relation to a Yacht of more than 24m in length registered in a Red Ensign
jurisdiction, it complies with the Large Commercial Yacht Code (LY2) or any subsequent replacements of, or amendments, thereto;

4.3.2 In relation to a small motor or sailing vessel (over 20 metres in load line length for mono hulls and over 15 metres in load line length for multi hulls) registered in a Red
Ensign jurisdiction, it is commercially registered and in compliance with the Small Commercial Vessel and Pilot Boat (SCV) Code (or such other Code as shall amend or supersede SCV); or

4.3.3 In relation to Yachts registered in non-Red Ensign jurisdictions, the equivalent laws, restrictions and regulations regulating the commercial use of yachts and other
commercial vessels in use for sport or pleasure.

4.4

Central Agencies must provide proof to Ankor that they have been duly appointed by a Yacht’s owner. Unless and until such proof has been provided, by way of Certificate of Appointment or otherwise, which is in Ankor’s sole discretion satisfactory, the Central Agency is not entitled to list such Yacht for charter.

4.5

Central Agencies must provide to Ankor the Listing Information in relation to each Yacht listed by them. Such Listing Information may be provided by email, via the Ankor Site, or by any
other method of delivery or communication which Ankor (in its sole discretion) deems acceptable. Any visual content (including images and video) comprised in the Listing Information must be free of any trade marks, branding or watermarks. Central Agencies are responsible for any and all Listing Information provided and warrant that such Listing
Information is, to the best of their knowledge and on the basis of having made reasonable enquiries, correct, complete and up-to-date.

4.6

Central Agencies shall use reasonable endeavours to maintain the Listing Information for all Yachts which they list on the Ankor Site. If a Central Agency fails to update Listing Information regularly, provides Listing Information which Ankor reasonably suspects is inaccurate or in breach of Clause 4.5, or does not offer a Yacht for Charter for a period of six (6) months or more, then Ankor (without prejudice to any other of Ankor’s rights and remedies) is entitled in its sole discretion to remove that Yacht from the Ankor Site.

4.7

Each Central Agency warrants that it is entitled to use and has obtained any and all rights, licences and permissions necessary to grant to Ankor the rights, licences and permissions granted by this Agreement in relation to the Listing Information including, without limitation, any information, images and other materials, whatsoever and howsoever recorded or
described and any Intellectual Property Rights comprised therein.

4.8

By this Agreement, each Central Agency hereby grants to Ankor a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable licence and right to use the Listing Information provided by it and any and all Intellectual Property Rights subsisting therein, including without limitation use for the purposes of the Ankor Site and/or the arranging the Charter of Yachts generally, including but not limited to supplying and sublicensing such information to Retail Agencies or any new Central Agency for that Yacht in the future.

4.9

Each Central Agency hereby indemnifies Ankor and agrees to hold Ankor, including its associated companies, employees, directors, shareholders and agents, harmless in relation to any inaccuracies, falsehoods or other misdescriptions in relation to each Yacht or set of Listing Information provided. Each Central Agency further indemnifies Ankor in relation to any liabilities arising out of any breach by that Central Agency of Clauses 4.5 or 4.6.

4.10

Each Central Agency warrants that each Yacht it has listed on the Ankor Site fulfils and satisfies in every respect the applicable legal and regulatory requirements, as set out within Clause 4 or otherwise, for operating that Yacht in the cruising area identified in the Listing Information, including but not limited to any flag state, ISM, MARPOL or local law requirements, whatsoever and howsoever arising, applying or described.

4.11

For the avoidance of doubt, if a Yacht which is listed on the Ankor Site changes Central Agency
to another Central Agency which is also a Subscriber (a “CA Change”) then any and all Listing
Information shall remain on the Ankor Site. During a CA Change, the outgoing Central Agency is responsible for arranging with the incoming Central Agency that any and all permissions necessary for the performance of this Agreement are transferred, assigned, novated or otherwise. The incoming Central Agency will not be entitled to access any information relating to the performance of Charters by the Yacht prior to the CA Change unless the outgoing Central Agency and owner of the Yacht expressly agree otherwise in writing.

5. Retail Agencies and fixing Charters
5.1

Retail Agencies who are Subscribers are entitled to use the Ankor Site and the Ankor Information thereon (including for the avoidance of doubt the Listing Information) to fix Charters for their clients with the owners of Yachts via the appointed Central Agency.

5.2

Retail Agencies should approach the Central Agency via the Ankor Site for a Yacht listed on the Ankor Site unless there is a valid business reason for making an alternative approach. If a Retail Agency regularly seeks to circumvent a Central Agency which is responsible for a particular Yacht with no good reason then Ankor is entitled to terminate that Retail Agency’s subscription.

5.3

The Ankor Site provides communication channels by which Retail Agencies and Central Agencies may negotiate Charters for Yachts. Retail Agencies should endeavour to approach Central Agencies using those channels where it is practicable to do so but are not restricted from using other forms of communication or platforms.

5.4

Retail Agencies must not send screenshots or other information extracted directly from the Ankor Site to their clients save for the use of links specifically created by the Ankor Site for that purpose. Retail Agencies are only entitled to use the photographs and e-brochures available on the Ankor Site in order to demonstrate to their clients Yachts which are potentially available for Charter in accordance with their clients’ needs.

5.5

Once a Charter has been entered into between a Yacht’s owner and a charterer by a Retail Agency and a Central Agency, the Retail Agency must update the Ankor Site with a copy of the Charter and details of the rates agreed in respect of that Charter, which the Retail Agency warrants to be a full and correct representation of the financial recompense to be received by the Yacht’s owner for the Charter.

6. Confidentiality and Intellectual Property Rights
6.1

No rights are granted to any Subscriber with respect to the Ankor Information other than those expressly set forth in this Agreement. To the extent that such rights vest in Ankor, all Intellectual Property Rights in the Ankor Information are and shall remain the sole and exclusive property of Ankor. To the extent not available publicly elsewhere, save for as a result of a breach of duty or contract, the Ankor Information is confidential to Ankor.

6.2

The Subscriber acknowledges and accepts on behalf of itself and each Individual User that damages are an insufficient remedy in relation to any and all breaches of this Agreement in relation to the use of the Ankor Information and/or any infringement of Intellectual Property Rights arising out of or in connection with the Ankor Information.

6.3

The Subscriber shall provide details of all disclosures and use of the Ankor Information
(including without limitation copies of communications containing, wholly or in part, Ankor
Information) within five (5) days of any request for the same by Ankor.

6.4 If the Subscriber or an Individual User becomes aware of, is informed of, or reasonably suspects, (i) any breach of any duty of confidentiality in relation to the Ankor Information, (ii) any breach of any restrictions set out in this Agreement, or (iii) any infringement of any Intellectual Property Rights in the Ankor Information (each a “Breach”), the Subscriber and/or each Individual User shall:

6.4.1 Inform Ankor by email and telephone as soon as reasonably possible after becoming aware of any Breach or suspected Breach; and

6.4.2 Provide all reasonable assistance to Ankor in order to ascertain the extent of any Breach or suspected Breach, including provision of any and all relevant documents and communications and, if necessary, assisting with or taking legal action against any party which has committed a Breach or received Ankor Information in
contravention of the terms of this Agreement.

7. Payment of the Annual Price, Charges, Reimbursements and Indemnities
7.1

Ankor shall send an Ankor Invoice for the next Subscription Term at the commencement thereof or collect the Annual Price by direct debit monthly. Ankor shall raise interim Ankor Invoices for Booking Fees and other charges payable by Subscribers at appropriate intervals. The Subscriber shall pay all Ankor Invoices and direct debits without set off or deduction and free of all banking charges into the account specified in the Ankor Invoice or otherwise notified to the Subscriber by Ankor from time to time.

7.2

To the extent permitted by law and subject to the Australian Consumer Law, the Annual Price is non-refundable and shall be payable on the terms and/or dates set out in the relevant Ankor Invoice. For the avoidance of doubt, Ankor accepts no tax liabilities, if any, in relation to the Subscriber’s payment of the Annual Price, including any GST, save for Ankor’s own VAT and corporation tax liabilities in its place of incorporation. If Ankor incurs any additional tax liabilities, such as GST, as a result of the Subscriber’s payment of the Annual Price the Subscriber shall reimburse Ankor for the same within no more than fourteen (14) days.

7.3

The Subscriber shall reimburse Ankor within no more than fourteen (14) days in respect of any and all administrative charges incurred by Ankor in relation to that Subscriber and this Agreement, including but not limited to tax documentation.

7.4

All invoices for the purposes of this Agreement shall be raised by Ankor in electronic copy only. If the Subscriber requires hard copies of any invoices or other paperwork under or in connection with this Agreement, the Subscriber shall pay to Ankor in advance a fixed fee of 10% of the most recent invoice value unless such fee is waived by Ankor in its sole discretion.

7.5

Ankor is entitled to increase the Annual Price for each new Subscription Term by giving notice to the Subscriber in the applicable Ankor Invoice. For the avoidance of doubt, any increase to the Annual Price will not affect the current Subscription Term that has already been invoiced in accordance with Clause 7.1.

8. Termination and Expiry
8.1

The Subscriber must notify Ankor in writing no less than 30 days before the date upon which each Subscription Term ends if it wishes to terminate this Agreement (a “Termination Notice”) and:

8.1.1 If the Subscriber does not serve a Termination Notice then this Agreement shall be automatically extended for a further Subscription Term of equivalent length; but

8.1.2 If the Subscriber does give a Termination Notice then, on expiry of this Agreement at the end of the existing Subscription Term, any and all rights of the Subscriber to
use or access the Ankor Information shall cease immediately.

8.2

Without prejudice to its rights at common law, Ankor is entitled to terminate or suspend this
Agreement by written notice to the Subscriber in its option and/or if the Subscriber:

8.2.1 Fails to pay any sum due hereunder within seven (7) days of the due date;
8.2.2 Becomes unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986 or equivalent local legislation or law; or

8.2.3 Is in breach of the provisions of Clause 2, Clause 4, Clause 5, Clause 7 or Clause 10 which are applicable to that Subscriber, whether or not such breach is a material breach; and

8.2.4 Ankor’s rights of suspension and/or termination shall also be exercisable if Ankor has grounds to suspect that a breach of the aforementioned provisions has occurred.

8.3

If Ankor terminates this Agreement in accordance with Clause 8.2 or at common law then any rights to use or access the Ankor Information shall cease immediately.

8.4

If Ankor terminates or suspends this Agreement in accordance with this Clause 8 then, to the extent permitted by law and subject to the

8.4.1 Ankor is entitled to retain any and all sums paid by the Subscriber prior to
termination;

8.4.2 The Subscriber remains liable to Ankor for any sums which are unpaid at date of termination whether included within an Ankor Invoice or not; and

8.4.3 The Subscriber remains liable to Ankor for any and all parts of the Annual Price which accrue and/or fall due during the period of suspension, if applicable.

8.4

If Ankor terminates or suspends this Agreement in accordance with this Clause 8 then, to the extent permitted by law and subject to the Australian Consumer Law:

8.4.1 Ankor is entitled to retain any and all sums paid by the Subscriber prior to
termination;

8.4.2 The Subscriber remains liable to Ankor for any sums which are unpaid at date of termination whether included within an Ankor Invoice or not; and

8.4.3 The Subscriber remains liable to Ankor for any and all parts of the Annual Price which accrue and/or fall due during the period of suspension, if applicable.

9. Notices
9.1

Notices from Ankor to the Subscriber or any Individual User including service of process may be served on any or all of the addresses within the relevant Schedule, including on the Primary Contact by email. Notices will be deemed delivered within two days of sending, subject to evidence of prior receipt by the Subscriber.

10. Data Protection and Monitoring
10.1

For the purposes of this Clause 10, the terms “personal data”, “processed” and “controller” shall have the meaning given to them in the applicable Data Protection Legislation. For the purposes of the Australian Privacy Act, all references to “Personal Data” are deemed to be references to “personal information”, as that term is defined in that Act.

10.2

The parties acknowledge and agree that each of them shall comply with:

10.2.1 in the UK and the European Union, its obligations as a controller under the Data Protection Legislation in respect of any personal data processed by it as a controller
pursuant to this Agreement (the “Services Personal Data”); and

10.2.2 in Australia, its obligations under the Data Protection Legislation in respect of any personal data that it deals with it pursuant to this Agreement (also, the “Services
Personal Data”).

10.3

Notwithstanding Clause 4.6, Subscriber shall collect any necessary permission, provide any necessary notice and do all such other things as are required under the Data Protection Legislation in order for it to disclose the Services Personal Data to Ankor for the purposes set out in this Clause 10.

10.4

Where each party is acting as a controller of the Personal Data (or, in Australia, where the party deals with any Personal Data), it shall implement appropriate technical and organisational measures to maintain the security of the personal data and prevent unauthorised or unlawful access to, or processing of, or any accidental loss, destruction or
damage to the personal data.

10.5

In its capacity as a controller (or, in Australia, in connection with any Personal Data that it
deals with under this Agreement), Subscriber shall notify Ankor without undue delay:

10.5.1 upon receiving a subject access or other request from a data subject of the Services Personal Data, or if it receives any other claim, complaint or allegation relating to
the processing of the Services Personal Data by Subscriber or Ankor; and

10.5.2 upon becoming aware of any breach of security leading to the destruction, loss or unlawful disclosure of the Services Personal Data in the Subscriber’s possession or control, and in each case the Subscriber shall discharge its duties under the Data Protection
Legislation.

10.6

To the extent that Ankor processes any personal data on behalf of Subscriber as a processor
under this Agreement or in connection with the provision of the Services (the “Processor Services Personal Data”), the parties shall co-operate to ensure that they have completed the particulars of processing in Schedule 3 hereto and Ankor shall:

10.6.1 only process the Processor Services Personal Data to the extent, and in such a
manner, as is necessary for the purpose of delivering the Services and as otherwise instructed by the Subscriber in writing from time to time, or as reasonably required by applicable law;

10.6.2 ensure that it, and each of its sub-processors, has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of
the Processor Services Personal Data and against accidental loss or destruction of, or damage to, the Processor Services Personal Data having regard to the nature of the processing;

10.6.3 notify Subscriber of any accidental or unlawful destruction or accidental loss or damage, alteration, unauthorised disclosure or access to the Processor Services
Personal Data;

10.6.4 unless expressly prohibited by any applicable laws, after receipt of a request,
complaint, demand or order related to Processor Services Personal Data, notify Subscriber and assist Subscriber in responding to any request, complaint, demand or order from a data subject, supervisory authority, regulator or government
authority;

10.6.5 ensure that all individuals who have access to and/or process the Processor Services Personal Data are obliged to keep the personal data confidential;

10.6.6 maintain records and information to demonstrate its compliance with this Clause 10.6;

10.6.7 at the written direction of Subscriber, delete or return the Processor Services Personal Data and copies thereof to Subscriber on termination of this Agreement, unless required by relevant applicable laws to store the Processor Services Personal Data; and

10.6.8 notify the Subscribers from time to time of any third party sub-processor of the Processor Services Personal Data and the Subscriber agrees that Ankor is permitted to appoint such third party sub-processors, including those outside the UK and EEA, provided that relevant safeguards (including for and any international data transfer) in relation to such transfers are put in place by Ankor as required.

10.7

To the extent Services Personal Data or Processor Services Personal Data is transferred to Ankor or any subsidiary of Ankor, which is outside of the United Kingdom or European Economic Area, Ankor and the Subscriber agree that the Standard Contractual Clauses as attached hereto as Schedule 2 shall apply. On Ankor’s request, the Subscriber shall enter into any additional data processing agreement or additional data protection agreement as required by mandatory Data Protection Legislation or a competent data protection or other competent authority, or into any updated version of the Standard Contractual Clauses with Ankor. The Subscriber shall ensure that its affiliates or sub-processors shall also, upon Ankor’s request, promptly enter into any such agreement with Ankor.

10.8

The Subscriber authorises Ankor (subject to Data Protection Legislation) to use any and all reasonable means to monitor the use and distribution of Ankor Information by the Subscriber, the Primary Contact and the Individual Users including but not limited to the use of tracking software.

10.9

The Subscriber shall indemnify, and keep indemnified, Ankor from and against all liabilities, costs, expenses, damages and losses and any professional costs and expenses suffered by, incurred by, or awarded against Ankor, arising out of or in connection with any failure by that Subscriber or its employees or agents or Individual Users to comply with its obligations under this Clause 10.

11. Miscellaneous and Force Majeure
11.1

Each party warrants that it has full right, power and authority to execute, deliver and perform this Agreement.

11.2

If any provision of this Agreement shall be found to be void or unenforceable, that provision shall be deemed deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect and the deleted provision shall automatically be deemed replaced by an equivalent provision reflecting the spirit and intent of this Agreement and in form closest to the deleted provision that is permitted by law.

11.3 Ankor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by Force Majeure.

11.4

Nothing in this Agreement limits any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be lawfully excluded (which may include liability under section 18 of the Australian Consumer Law).

11.5

Subject to Clause 11.4, this Agreement and additional terms set out in any Ankor Invoice constitute the whole agreement between the parties and no variation or alteration of this Agreement shall be valid unless approved in writing by a director of Ankor. This Agreement shall prevail over any other terms of business or conditions that the Subscriber or an
Individual User might put forward.

11.6

This Agreement may be executed in counterpart. However, no signature to this Agreement is required in order for a Subscriber or Individual User to be bound by the terms of this Agreement and in the event that either a Subscriber or Individual User has expressly or impliedly had notice of the terms of this Agreement and has continued to receive or use Ankor Information then they will be so bound.
1 We have seen similar permissions included in subscription terms in the past. Is Ankor planning to engage in any kind of monitoring of the use of the Ankor Site?

11.7

This Agreement may be entered into by any of the following methods: (i) completing the details in an applicable Schedule; (ii) incorporation by reference via an Ankor Invoice; or (iii) otherwise through a course of dealing or any other means permitted in law (each a “Method”). If entered into by Method (ii) or (iii), the information otherwise set out in the applicable Schedule to these Terms of Use will be specified, to the extent required, in the relevant Ankor Invoice or other correspondence. Where these Terms of Use are entered into by Method (ii) or (iii), references to the Schedules to these Terms of Use are to be read as applying to the relevant Ankor Invoice, correspondence or otherwise.

11.8

No failure or delay by Ankor to exercise any of its rights or remedies under or in connection with this Agreement or the Ankor Information shall operate as a waiver thereof. No single or partial exercise of any right or remedy shall operate as a waiver of such right or remedy.

11.9

Expiry or termination of this Agreement shall not relieve the parties of any obligation accruing
prior to such expiry or termination, nor shall it affect any rights, remedies or liabilities of the
Parties which have accrued up to the date of termination, including the right to claim damages
for any breach of the Agreement that existed at or before the date of termination. For the avoidance of doubt, clauses 2.2, 3, 4, 8.1, 8.3, 10.2, 10.7, 10.8, 11.8, 11.9 and 11.10 shall survive termination or expiry of this Agreement however caused.

11.10

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including any non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.

11.11

The courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”). Notwithstanding the foregoing, Ankor shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, Ankor may take concurrent proceedings in any number of jurisdictions