Terms and Conditions of the Watermark Simulator
Interpretation
The following defined terms and rules of interpretation apply to these Terms and Conditions:
1.1 “Additional Services” means any Simulator customisation work or similar services undertaken by Watermark under a Statement of Work agreed with the Customer.
1.2 “Affiliate” in relation to a party, means any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
1.3 “Booking Confirmation” Watermark’s written confirmation that the Order has been accepted.
1.4 “Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.5 “Charges” means the charges payable by the Customer for the Hire and/or the Additional Services (as applicable to the Order).
1.6 “Confidential Information” means all information (however recorded or preserved) that one party discloses or makes available to the other party (recipient) in connection with the Contract and which would be regarded as confidential by a reasonable business person. It includes any information relating to the Charges, or the operations, products or customers of either party. It does not include information that: is or becomes generally available to the public through no fault of the recipient; is independently developed by or for the recipient; or was, is or becomes available to the recipient on a non-confidential basis from a person who, to the recipient’s knowledge, is under no confidentiality obligation with respect to that information.
1.7 “Contract” means the contract for the Hire and/or Additional Services (as applicable), comprising these Terms and Conditions and the terms of the Order and/or a Statement of Work (as applicable).
1.8 “control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and controls and controlled shall be interpreted accordingly.
1.9 “Customer” means the customer identified in the Order or Statement of Work (as applicable).
1.10 “Customer Materials” all documents, information, software, items and materials (whether owned by the Customer or a third party), which are provided by the Customer to Watermark in connection with the Hire or Additional Services.
1.11 “Hire” means the grant of the use of the Simulator, and delivery of any agreed training sessions, by Watermark and its instructors to the Customer’s attendees. “Hired” shall be interpreted accordingly.
1.12 “Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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, those rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.13 “Licensed Materials” has the meaning given in clause 7.1.
1.14 “Losses” all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses).
1.15 “Order” the Customer’s request for Hire, which may be a verbal request by telephone, an email request or an order made via Watermark’s website.
1.16 “Policies” Watermark’s Health and Safety Policy and Venue Code of Conduct that are available upon request.
1.17 “Reserved Dates” means the times and dates of the Customer’s requested period of Hire, as set out in its Order.
1.18 “Secure the Reservation” in relation to an Order, the Customer either:
1.18.1 paying 50% of the Charges as a deposit; or
1.18.2 supplying a purchase order to Watermark for the full amount of the Charges,
and “Secured the Reservation” shall be interpreted accordingly.
1.19 “Simulator” means a maritime training simulator at the Venue.
1.20 “Statement of Work” means a document agreed by the parties which sets out the Additional Services to be provided by Watermark, including key terms such as the Charges and timeframes for performance.
1.21 “Venue” the Lakeside Simulator Centre in Portsmouth, England.
1.22 “Watermark” Watermark Group Limited (company number 15663875) with its registered address at Suite 2, Building 2000 Watermark North Harbour, 57 Spyvee Street, Hull, E. Yorks, England, HU8 7JJ.
1.22.1 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.22.2 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that legislation or legislative provision.
1.22.3 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.22.4 A reference to “writing” or “written” includes post and email.
2 BOOKING PROCESS AND Term
2.1 The Customer’s Order is a request for Watermark to provide Hire on the Reserved Dates.
2.2 Following an Order, Watermark will hold the Reserved Dates for 14 days. If the Customer does not Secure the Reservation before the 14 days lapse, Watermark will release the Reserved Dates to other Customers.
2.3 If the Customer Secures the Reservation after the Reserved Dates have been booked by another customer, Watermark will notify the Customer and invite the Customer to resubmit its Order for available dates. No contract will be formed in relation to the original Reserved Dates.
2.4 If the Contract involves Hire, the Hire component of the Contract comes into existence when Watermark sends a Booking Confirmation to the Customer. A Booking Confirmation will only be issued once the Customer has Secured the Reservation. Unless it is cancelled or terminated earlier in accordance with clause Error! Reference source not found., the Hire component of the Contract ends automatically on conclusion of the final Hire session.
2.5 If the Contract involves Additional Services then the Additional Services component of the Contract comes into existence when Watermark and the Customer agree the Statement of Work in writing. Unless it is cancelled or terminated earlier in accordance with clause Error! Reference source not found., the Additional Services component of the Contract ends automatically on completion of the Additional Services.
2.6 If the Customer needs to extend its period of Hire then this must be agreed by Watermark in writing (at Watermark’s sole discretion). The Customer should request extensions in advance of the Hire period, where possible, as Watermark cannot guarantee availability on the day. Unless the parties agree a contrary arrangement in writing, Watermark will charge its prevailing charges for any additional Hire period.
3 Watermark’s obligations
3.1.1 perform its obligations with reasonable care and skill in accordance with the generally recognised standards and practices in its industry;
3.1.2 in relation to Additional Services, use reasonable endeavours to meet any performance dates specified in the Contract; and
3.1.3 comply with all applicable laws.
3.2 Where the Contract relates to Hire:
3.2.1 Watermark will Hire the Simulator to the Customer on the Reserved Dates in accordance with the Contract in all material respects;
3.2.2 during the period of Hire, the Customer will have exclusive use of the Simulator it has booked. No other customer shall be permitted to join, observe, or actively participate in that session without the Customer’s and Watermark’s prior consent. Watermark personnel will be in attendance at all times;
3.2.3 Watermark reserves the right to host multiple customers simultaneously (in separate Simulators) or consecutively (for the same Simulator) at the Venue. If the Customer needs absolute confidentiality then this must be discussed with Watermark before making an Order. It may be necessary for the Customer to extend its period of Hire, or to hire out the entire Venue, to ensure no overlap with other users of the Venue; and
3.2.4 unless stated otherwise in the Booking Confirmation, Watermark cannot guarantee a specific instructor for a period of Hire.
3.3 To the extent that Watermark’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or any of its agents, consultants, staff or attendees (“Excusing Cause”), Watermark shall not be in breach of the Contract nor liable for any Losses incurred by the Customer as a result of its performance being so prevented or delayed. Without prejudice to any other right or remedy it may have, Watermark shall be:
3.3.1 granted an extension of time to perform its obligations equal to the delay caused by the Excusing Cause;
3.3.2 entitled to full payment of the Charges despite its performance being prevented or delayed;
3.3.3 entitled to remove any of the Customer’s attendees who are disruptive and/or non-compliant with the Policies or applicable laws; and
3.3.4 entitled to recover from the Customer all Losses, including additional costs, incurred as a result of the Excusing Cause.
4 Customer’s obligations
4.1.1 co-operate with Watermark in all matters relating to the Contract and shall ensure that its attendees co-operate with Watermark including, without limitation, by complying with Venue induction requirements and the reasonable instructions of Watermark’s personnel;
4.1.2 provide Watermark, in a timely manner, with all information and materials as Watermark may require to provide the Additional Services and Hire and ensure that they are accurate and complete and not misleading in all material respects; and
4.1.3 comply and ensure that its attendees and ensure that its attendees comply with all applicable laws and the Policies in performance of the Contract.
4.2 Attendees of the Customer who are present during Hire to observe training must do so from the instructor station, as indicated by Watermark personnel.
4.3 Customers are not authorised to directly control or alter any Simulator settings or configurations unless Watermark has given its written permission prior to the period of Hire. If so permitted, access is subject to live supervision and monitoring by Watermark personnel at all times and Watermark may withdraw access at any time. No access is otherwise granted to the Customer or its attendees to the ‘back-end’ of the Simulator.
5 Eligibility for training or exams
5.1 When booking training or exams, the Customer is solely responsible for ensuring that its attendees meet the eligibility criteria for the training/qualification. Watermark having asked to see evidence of prior experience or qualifications for an attendee is not an assurance by Watermark that the attendee is eligible to undertake the booked training or exam (as applicable).
5.2 The Customer authorises Watermark to refuse to administer training or exams for any individual Watermark has reasonably determined to be ineligible.
5.3 Watermark has no liability to the Customer or their attendee as a result of the attendee being ineligible (or reasonably determined to be ineligible under clause 5.2) to undertake or pass any training or exam and (without limiting the foregoing) no refunds will be issued for wasted Charges or any costs and expenses incurred by the Customer as a result.
5.4 The Charges are not conditional upon any pass rate or admission rate for training or exams and no refunds will be issued for these reasons.
6 Data protection
Each party shall comply with its data protection obligations. Watermark is the data controller in respect of the personal data processed under this Contract and its Privacy Notice sets out how Watermark processes personal data.
7 Intellectual property
7.1 Watermark and its licensors shall have and retain ownership of all Intellectual Property Rights comprised in the Hire, Additional Services and all deliverables thereof (including any training materials supplied as part of Hire), excluding any Customer Materials (“Licensed Materials”).
7.2 Subject to Watermark receiving payment of all Charges, Watermark grants to the Customer and, if the contract is for Hire, the Customer’s attendees a non-exclusive, royalty-free, non-transferable (except in accordance with clause 12.2) licence during the term of the Contract to use the Licensed Materials to obtain the full benefit of the use of the Simulator. Training materials provided for attendees to take away with them may be used indefinitely (subject to being checked and updated periodically to ensure they remain current), subject to compliance with the restrictions contained in this clause 7.
7.3 The rights granted in clause 7.2:
7.3.1 cannot be sublicensed without Watermark’s prior written consent;
7.3.2 do not permit the Customer or (where applicable) its attendees to copy, publish or reproduce any of the Licensed Materials; and
7.3.3 cannot be transferred to any other training provider or simulator. In particular, customisations and bespoke code resulting from Additional Services are not transferable to third parties.
7.4 The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. The Customer grants Watermark a non-exclusive, royalty-free licence to use, copy and modify the Customer Materials as reasonably necessary to supply the Hire or Additional Services (as applicable). Watermark may grant sublicences of the Customer Materials to its subcontractors and other suppliers where necessary for the supply of Hire or Additional Services (as applicable).
7.5 All Intellectual Property Rights in any recordings (video and/or audio) made at the Venue shall be and remain vested in Watermark. Such rights are not within scope of the licence in clause 7.2. Watermark will use such recordings for internal training and debrief related purposes only. Watermark may use stills from records for marketing purposes with the Customer’s prior written consent.
7.6 Watermark shall indemnify the Customer against all sums awarded against the Customer by a court as a result of any claim that the supply, receipt or use of any of the Licensed Materials infringes the Intellectual Property Rights of any third party. Watermark shall not be liable under this indemnity to the extent that the actual or alleged infringement arises from:
7.6.1 any changes made to the Licensed Materials without Watermark’s prior written consent;
7.6.2 instructions, information or materials provided by the Customer or procured by Watermark in accordance with the Customer’s instructions; or
7.6.3 the use of the Licensed Materials for a purpose or in a manner not authorised by Watermark or the failure of the Customer or attendee (as applicable) to adhere to Watermark’s instructions for the use of the Licensed Materials.
7.7 The Customer shall indemnify Watermark against all Losses incurred by Watermark as a result of any claim that the supply, receipt or use of the Customer Materials infringes the Intellectual Property Rights of any third party. The Customer shall not be liable under this indemnity to the extent that the actual or alleged infringement arises from the use of the Customer Materials for a purpose or in a manner not authorised by the Customer.
8 Charges and payment
8.1 If Watermark agrees to arrange hotel, subsistence, travel or any other facilities for the Customer’s attendees then Watermark shall charge the cost of such facilities, plus an administration fee of 15%, as Hire Charges.
8.2 Watermark will invoice the Customer for Hire Charges following the Customer’s Order. Invoices for Hire are payable within 7 days of receipt of Watermark’s invoice. Payment must be made in Pounds Sterling to the bank account nominated in writing by Watermark.
8.3 Watermark will invoice the Customer for Additional Services Charges following agreement of the Statement of Work. Invoices for Additional Services are payable within 7 days of receipt of Watermark’s invoice unless otherwise stated in the applicable Statement of Work. Payment must be made in Pounds Sterling to the bank account nominated in writing by Watermark.
8.4 All sums payable by the Customer exclude amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from Watermark, pay to Watermark any additional amounts in respect of VAT as are chargeable on those sums.
8.5 Without prejudice to any other right or remedy that Watermark may have, if the Customer fails to pay any sum due to Watermark under the Contract by the due date:
8.5.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
8.5.2 a fixed fee under the Late Payment of Commercial Debts Act of:
8.5.2.1 for a debt less than £1,000, the sum of £40;
8.5.2.2 for a debt of £1,000 or more, but less than £10,000, the sum of £70;
8.5.2.3 for a debt of £10,000 or more, the sum of £100; and
8.5.3 Watermark may suspend all or part of the Hire and Additional Services (under the same Contract or under any number of separate contracts entered into between the parties, as applicable) until payment has been made in full.
8.6 All amounts due under the Contract from the Customer to Watermark shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9 Limitation of liability
9.1 The following definitions apply in this clause 9:
9.1.1 “default”: any act or omission resulting in one party incurring liability to the other; and
9.1.2 “liability”: every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
9.2 Nothing in the Contract limits or excludes:
9.2.1 liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
9.2.2 liability for fraud or fraudulent misrepresentation;
9.2.3 liability for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
9.2.4 any liability that cannot legally be limited; or
9.2.5 the Customer’s liability for its payment obligations under the Contract.
9.3 Subject to clause 9.2, all conditions, warranties, representations or other terms that might otherwise be implied into this agreement by statute, common law or otherwise are excluded from the Contract.
9.4 Subject to clause 9.2, Watermark shall not have any liability for:
9.4.1 loss of profits (including loss of anticipated savings);
9.4.2 loss of business or business opportunity;
9.4.3 loss of use or corruption of software, hardware, data or information;
9.4.4 loss of or damage to goodwill; or
9.4.5 indirect or consequential loss.
9.5 Subject to clause 9.2, Watermark’s total liability under or relating to the Contract howsoever arising, including under any indemnity, shall not exceed the Charges paid or payable by the Customer under the Contract.
9.6 Subject to clause 9.2 and without limiting clause 12.1, the Customer accepts that the Simulator is reliant on code and network infrastructure which is maintained by the licensor of the Simulator’s software, not Watermark. Watermark shall not be liable to the Customer for any interruption of service or degradation in performance of the Simulator which is attributable to errors in code or unavailability of services which are not under Watermark’s direct control. Watermark will, however, use reasonable commercial endeavours to minimise the impact of the service interruption/degradation on the Customer and its attendees during the period of Hire and this will be the Customer’s sole remedy in respect of such issues.
9.7 Unless the Customer notifies the other party that it intends to make a claim within the notice period, Watermark shall have no liability for that claim. The “notice period” shall start on the day on which the Customer became aware, or reasonably ought to have become aware, of having grounds to make a claim and shall expire 6 months from that date. The notice must be in writing and must identify the grounds for the claim in reasonable detail.
9.8 The Customer acknowledges Watermark does not warrant the accuracy of Simulator data for navigational or engineering design purposes. Watermark shall not be liable for any real-world decisions based on Simulator data.
10 Cancellation and Rescheduling
10.1 Subject to clause 10.2, Hire may be cancelled by the Customer:
10.1.1 free of charge on at least 8 weeks’ written notice before the first day of the Hire period to be cancelled. Alternatively, the Customer can reschedule the Hire under clause 10.2 and will remain liable to pay the Charges;
10.1.2 on less than 8 week’s but more than 4 weeks’ written notice before the first day of the Hire period to be cancelled. The Customer remains liable to pay the Charges in full but the Charges are credited against future Hire or Additional Services. The Customer can reschedule the Hire under clause 10.2. The credit expires, if not used, 12 months after the first date of the original cancelled Hire period; or
10.1.3 on 4 weeks’ or less written notice before the first day of the Hire period to be cancelled. The Customer remains liable to pay the Charges in full. No refund or credit is offered.
10.2 Where rescheduling is permitted, the Customer may reschedule a Hire period a maximum of one time only. Rescheduling is subject to availability and the Customer accepts that the Simulator may not be available for the Customer’s preferred date(s) when it comes to rebook. Once rescheduled, further rescheduling will be at Watermark’s absolute discretion. If Watermark does not allow a further rescheduling then the Customer remains liable to pay the Charges in full. A rescheduled booking cannot be cancelled under clause 10.1.1 or clause 10.1.2.
10.3 Watermark may reschedule the Hire period (or part thereof) on reasonable commercial grounds (which may include equipment failure or instructor unavailability). The Customer will be offered the choice of alternative dates for Hire or a refund of the Charges. This shall be the Customer’s sole remedy in this regard. Watermark shall have no further liability to the Customer.
10.4 Watermark may cancel any Hire without cause upon giving at least 90 days’ written notice to the Customer. Watermark will refund all Charges which the Customer has paid in relation to the cancelled Hire.
11 Termination
11.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by notifying the other party if:
11.1.1 the other party commits a material breach of any term of the Contract which is not capable of remedy or, if capable of remedy, is not remedied by the other party within a period of 7 days after being notified to do so. The cure period shall be increased to 28 days in respect of Watermark’s material breach of any term relating to the Additional Services;
11.1.2 the other party fails to pay an amount due under the Contract on the due date for payment and remains in default for not less than 14 days after being notified in writing to make such payment; or
11.1.3 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986, or takes any other step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
11.2 Watermark may terminate a Contract for Hire immediately upon notice to the Customer’s attendees, and may eject all attendees from the Venue, should the Customer’s attendees breach a provision of the Policies which presents an unacceptable risk to Watermark’s personnel, reputation, and/or Simulator.
11.3 On termination of the Contract for whatever reason:
11.3.1 the Customer shall immediately pay to Watermark all of Watermark’s outstanding unpaid invoices and interest and, where no invoice has been submitted for Charges that are payable, Watermark may submit an invoice, which shall be payable immediately on receipt;
11.3.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
11.3.3 of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination, shall not be affected.
12 General
12.1 Force majeure. Neither party shall be liable for any delay or failure in performing any of its obligations for so long as and to the extent that the delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure”). Periods of Hire affected by Force Majeure shall be postponed until such time as the Force Majeure event or events have passed and the parties have mutually agreed further a substitute Hire period.
12.2 Assignment and other dealings. Either party may, after giving prior notice to the other party, assign, novate or transfer any of its rights and obligations under the Contract to:
12.2.1 an Affiliate of that party from time to time; or
12.2.2 any person to which it transfers its business or that part of its business to which the Contract relates.
12.3 Watermark may at any time assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.4.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 12.4.2.
12.4.2 Each party may disclose the other party’s Confidential Information:
12.4.2.1 to those of its and its Affiliates’ employees, officers, representatives, contractors, subcontractors or advisers who need to know that information for the purposes of exercising its rights or carrying out its obligations under the Contract (“Representatives”). Each party shall ensure that its Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this clause 12.4; and
12.4.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.4.3 Neither party may use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under the Contract.
12.5 Notwithstanding the aforementioned, Watermark may identify the Customer as a user of the Venue for marketing purposes, including displaying their name and logo on Watermark’s website and in general marketing materials, and tagging or mentioning the Customer on social media, unless otherwise Agreed with the Customer.
12.6 Watermark may use anonymised quotes or comments submitted on post-course feedback forms in marketing materials (website, social media, brochures, etc.) unless otherwise agreed with the Customer.
12.7.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
12.7.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.8 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.9 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12.10 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
12.11.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be sent by email to: (a) Watermark at simulator@watermark.cc; or (b) the Customer at any email address used by the Customer to correspond with Watermark in relation to the Contract, or to any other address as it may have notified to the other party in accordance with this clause 12.11.
12.11.2 Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, “business hours” means 9.00am to 5.00pm Monday to Friday on a Business Day.
12.12 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.13 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.14 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.