"CONDITIONS OF USE OF “RAM-MAP/ SWIM APPLICATION”
ARTICLE 1 – DEFINITIONS
- “RAM-MAP/SWIM application”:
The WCO “Reform and Modernization – Monitoring Activities and Projects” (RAM-MAP) Database and “Single Window Interactive Map (SWIM) – Trade Facilitation Measures (TFM)” is a Web-based application which continuously brings together information relating to customs procedures and processes related to other national stakeholders that are part of cross-border clearance environment. The RAM-MAP/SWIM application presents this information on a graphical map of the world and aggregates:
- news articles in a news feed map (hereafter the “News Feed Map”);
- information on WCO Global Activities, including the technical assistance programs and Capacity building activities;
- collaboration with other international organizations;
- information related to the International and Regional Legal Instruments;
- WCO Members’ automated systems such as Single Widow systems; and
- information related to the implementation on trade facilitation measures.
1.2 “User(s)”:
- WCO Members (hereafter “Members”) using the RAM-MAP/SWIM application.
- Any person from public or private sector which consults the International Legal instruments, uses the SWIM application and/or consults the News Feed Map.
ARTICLE 2 – PURPOSE AND AUTHORIZED USE
2.1 RAM-MAP Database
2.1.1 This Database is designed to allow the User to find news related to the WCO Global Activities in the areas of Capacity building activities and activities related to harmonization of international standards including projects and technical assistance programs, such as Mercator Programme. More specifically it will provide information on activity types, categories of the missions delivered by the WCO such as training, diagnostic, technical assistance, consultancy and other information such as the scope of the mission, financial year, starting dates of the mission, which is extracted from WCO Secretariat management application and to which the WCO has full ownership of intellectual property rights.
2.2 Database for International and Regional Legal Instruments, SWIM-TFM and News Feed Map
2.2.1 This Database will provide information collected from the Members and open source data that is already available in existing databases and systems of other international stakeholders. The structured information related to trade facilitation measures and more specifically to the features of the Members automated clearance systems, such as the business processes involved, business and e-services offered by the Cross Border Regulatory Services through Single Window environment and any other online platforms that may provide services to the trade community.
2.2.2 The Database also collect news and articles hosted on Internet sites which do not belong to and are not controlled by the WCO. More specifically, SWIM-TFM and News Feed Map provide a brief reference to the news presented (title, short extract and source) to help the User to determine which articles are of interest. When the User selects a news article, he/she is directed to the news site from which it originates.
2.3 Authorized use
2.3.1 The User shall be exclusively authorized to consult the RAM-MAP/SWIM application for information purposes and may only display the content of RAM-MAP/SWIM for strictly personal use (i.e. non-commercial use). Notwithstanding the foregoing and as provided for by the RAM-MAP/SWIM application, the User is authorized to provide third parties with the hyperlink to any of the interactive maps available in the RAM-MAP/SWIM application.
2.3.2 Any other use of the RAM-MAP/SWIM application or provision of its content to third parties is prohibited and strictly reserved for the WCO.
ARTICLE 3 – NEWS FEED MAP ARTICLES
3.1 The News Feed Map may include news articles hosted on Internet sites of which the WCO is not the author. These articles are not the intellectual property of the WCO and are not controlled by the WCO; the WCO shall not, under any circumstances, verify their content, form, accuracy or relevance.
3.2 If, however, the WCO is made aware of (i) the fact that a news article is incorrect or obsolete or (ii) the fact that it violates the rights of third parties or is illegal in any way, the WCO reserves the right to suspend or delete any link between RAM-MAP/SWIM and the news article in question.
ARTICLE 4 – WCO CUSTOMS CAPACITY BUILDING INFORMATION
WCO Customs capacity building information displayed in RAM-MAP is provided to User for reference. To the extent permitted by law, the WCO hereby expressly excludes:
- all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity;
- any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with RAM-MAP or in connection with the use, inability to use, or results of the use of RAM-MAP, any websites linked to it and any materials posted on it, including, without limitation, loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data, loss of goodwill and wasted management or office time; and
- any liability for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
ARTICLE 5 – FINANCIAL CONDITIONS
5.1 The WCO allows, free of charge, the consultation of the RAM-MAP/SWIM application by the User.
5.2 The User remains responsible for all costs, fees and investments it incurs directly or indirectly when using the RAM-MAP/SWIM application.
ARTICLE 6 – INTELLECTUAL PROPERTY
6.1 The User agrees and acknowledges that the WCO is the sole holder of all the intellectual property rights (such as copyright, the rights of the database producer, trade name or trade mark, trade secrets, patents and any other form of intellectual or industrial property rights, hereinafter referred to collectively as “Intellectual Property Rights”) and other rights relating to the RAM-MAP/SWIM application. The User undertakes to respect and, where applicable, to ensure that its agents, bodies and staff members respect the WCO’s Intellectual Property Rights in their entirety.
6.2 This clause is a determinant of the WCO’s commitment and any breach or attempted breach thereof by any User is cause for immediate termination of the authorization to use the RAM-MAP/SWIM application, without prejudice to any damages that the WCO could be entitled to claim.
6.3 Notwithstanding the above, the WCO does not, under any circumstances, declare that it is the owner of the Intellectual Property Rights on news articles hosted on websites which do not belong to the WCO and to which the User is directed, these being held by the websites referred to.
ARTICLE 7 – GUARANTIES AND RESPONSABILITY
7.1 RAM-MAP/SWIM shall be made available to Users “as is”, with no other explicit or implicit guarantee. All Users declare and recognize expressly that, for articles linked to in the RAM-MAP/SWIM application of which the WCO is not the author:
(i) the WCO does not provide any guarantee, particularly as regards their content and/or their form
(ii)the content is binding only on their author and not the WCO; and
(iii)the content does not reflect the views or opinion of the WCO.
7.2 The use of RAM-MAP/SWIM and of its content shall be made under the sole responsibility of the User and the WCO shall not, under any circumstances, be held liable for any damage (direct or indirect) linked to the use of RAM-MAP/SWIM and of the news articles to which it refers (including errors, omissions or typing errors, or due to misinterpretation). To this end, the User shall acknowledge having received from the WCO all the information required to take the necessary precautions with regard to use of RAM-MAP/SWIM. In particular, the User shall acknowledge that it has verified that it, and/or where applicable, its staff and/or partners, possess(es) the level of training required to use RAM-MAP/SWIM.
7.3 The User undertakes to compensate the WCO for any costs it may have to bear following any action or complaint by third parties, judicial or extrajudicial, relating to its use of RAM-MAP/SWIM, and indemnifies the WCO against any conviction in this respect in the event of claims or appeals.
ARTICLE 8 – PROHIBITION OF ACCESS
In the event of (i) failure to comply with these Conditions of Use or (ii) of the performance by the User of any activity which might be detrimental to the WCO, the WCO may prohibit access to the RAM-MAP/SWIM application, immediately and without indemnity.
ARTICLE 9 – ENTIRETY AND AMENDMENTS
9.1 These Conditions of Use shall constitute the entirety of the agreement entered into with the User with regard to its purpose.
9.2 The WCO reserves the right to amend the Conditions of Use at any time. The new conditions shall be deemed accepted by the User inasmuch as it continues using RAM-MAP/SWIM application after the date of their entry into force.
ARTICLE 10 – GENERAL CONDITIONS
10.1 If the WCO does not insist upon its rights where the User has failed to honour one of the obligations set forth in these Conditions of Use, this shall not be interpreted in future as renouncing the right to require compliance with the obligation infringed against.
10.2 If any stipulation in these Conditions of Use is null under a rule of law currently in force or a final judicial ruling, it shall be deemed not to form part of these Conditions of Use, but the force and scope of the remaining stipulations shall not be affected in any way whatsoever.
10.3 Any notification relating to these Conditions of Use shall be effected in writing and sent to the WCO at the following address:
World Customs Organization
Legal Service
Rue du Marché 30, 1210 Brussels, Belgium
E-mail: legal@wcoomd.org
ARTICLE 11 – SETTLEMENT OF DISPUTES
11.1 Nothing in these Conditions of Use, including any references to national legislation, may be construed as a waiver by the WCO of its privileges and immunities or of those of its officials.
11.2 Any dispute regarding the application of these Conditions of Use between Customs in a WCO Member Country and the WCO shall be settled by consultation.
11.3 Any dispute regarding the application of these Conditions of Use between the WCO and a User not referred to in Article 11.2 shall be settled in accordance with the procedure laid down in Part I of Customs Co‑operation Council Decision CCCXXXI as follows:
“DECISION OF THE COUNCIL No. 331117th/118th Sessions - June 2011
SETTLEMENT OF DISPUTES
HAVING REGARD to Article IX, Section 24, of the Annex to the Convention establishing a Customs
Co-operation Council,
THE COUNCIL DECIDES:
(i) to rescind Council Decision No. XXXIII of November 1954; and
(ii) to adopt the following modes of settlement of disputes arising out of contracts or other disputes of a private character to which the Council is a party and of disputes involving any official of the Council who, by reason of his/her official position enjoys immunity, if immunity has not been waived in accordance with the provisions of Sections 19 and 21 of the Annex to the Convention establishing a Customs Co-operation Council.
- Mode of settlement of disputes between the Customs Co-operation Council and third persons (other than its officials), arising out of contracts. All contracts or agreements, in any form, entered into by the Customs Co-operation Council (the “Council”) shall contain an arbitration clause by which the Council and the other Party (or Parties) to the contract undertake to refer to a tribunal of arbitrators, which shall reach its decision by application of law and without appeal, any disputes involving the Council regarding the interpretation or fulfilment of the contract they have entered into.
Unless otherwise specified, in any contract or agreement entered into by on the one hand, the Council, and on the other hand, one or more States and/or one or more international organizations, the said arbitration clause shall be worded as follows:
(1) Settlement of disputes by arbitrationAny claim or dispute regarding the interpretation or fulfilment of this contract shall be settled by a tribunal of three arbitrators (the “Arbitral Tribunal”), who shall render a majority decision, reached by application of law and without appeal.
(2) Initiation of the arbitral proceedings
(i) Notice of damageIn order for its claim to be admissible, each Party to the contract shall, within a period of six (6) months from the date when it became aware of the damage sustained, or an absolute time limit of two (2) years beginning on the day after the day when the incident which caused the damage occurred (the action shall be time barred as soon as one of these time limits has expired), give notice of the claim, by registered letter (with acknowledgment of receipt), to any other Party to the contract against which it wishes to file a claim (the “Notice of damage”).
The Party initiating the Notice of damage shall be called “the Claimant”, and the Party which receives the Notice of damage shall be called “the Respondent”.
(ii) Mandatory conciliation
Beginning on the date when the Notice of damage is sent, there shall be a period of mandatory conciliation between the Parties lasting thirty (30) calendar days (the “conciliation period”).
(iii) Notice of arbitration
In the event that the Parties have not been able to reach an amicable agreement by the end of the conciliation period, it shall be up to the Claimant(s) to notify the Respondent(s) of his/her/their desire to initiate arbitral proceedings by sending a registered letter (with acknowledgment of receipt) (the “Notice of arbitration”) no later than ten (10) calendar days after the end of the conciliation period.
The Notice of arbitration shall, on pain of invalidity, include at least the following: (i) appointment of an arbitrator,
(ii) reference to the arbitration clause invoked,(iii) reference to the agreement or relationship out of or in relation to which the dispute arises, (iv) the relief sought and, where appropriate, an estimate of the amount claimed.
Within twenty (20) calendar days following the sending of the Notice of arbitration, the Respondent(s) must select his/her/their own arbitrator and notify the Claimant(s) and the arbitrator already selected by the latter of his/her/their choice. At the same time, the Respondent(s) shall make any counter-claims.
If the Respondent(s) fail(s) to appoint an arbitrator within the time allowed, that arbitrator shall be appointed by the Secretary-General of the Permanent Court of Arbitration (PCA) within thirty (30) calendar days following a request by the Claimant.
Where there is more than one Claimant and/or more than one Respondent, the Claimants jointly shall appoint one arbitrator and the Respondents jointly shall appoint one arbitrator.
(3) Composition of the Arbitral Tribunal
(i) Appointment
The two arbitrators appointed by the Claimant(s) and the Respondent(s) shall, by common agreement, select a third arbitrator who shall chair the Arbitral Tribunal de jure.
If the first two arbitrators fail to appoint the third arbitrator within fifteen (15) calendar days of notification of the appointment of the second arbitrator, the third arbitrator shall be nominated by the Secretary-General of the Permanent Court of Arbitration (PCA) within thirty (30) calendar days following a request by the first Party to take action or the arbitrators selected by the Parties.
The three arbitrators thus appointed shall constitute the Arbitral Tribunal.
(ii) Independence and impartiality of the arbitrators
Only persons who are independent of the Parties and of their legal counsel may serve as arbitrators.
Each arbitrator shall sign a declaration of independence in which he/she undertakes to abide by the rules of good conduct set out therein and sets out, in writing, any facts and circumstances that could lead any of the Parties to doubt his/her independence. The Parties shall have twenty (20) calendar days following receipt of each arbitrator’s declaration of independence to make any comments.
Moreover, an arbitrator shall immediately disclose in writing to the Parties any facts or circumstances of a similar nature to those referred to in the preceding paragraph which may arise during the arbitration.
(iii) Challenge and replacement of arbitrators
- Challenge
Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his/her impartiality or independence.
A Party who intends to challenge an arbitrator shall send notice of his/her challenge within twenty (20) calendar days after the declaration of independence of the challenged arbitrator has been notified to the challenging Party or within twenty (20) calendar days after the circumstances referred to in paragraph (3)
(ii)
- 3 above became known to that Party.
The challenge shall be notified to the other Party, to the arbitrator who is challenged and to the other members of the Arbitral Tribunal. The notification shall be in writing and shall state the reasons for the challenge.
When an arbitrator has been challenged by one Party, the other Party may agree to the challenge; in that case the arbitrator shall be required to withdraw. The challenged arbitrator may also withdraw voluntarily. In neither case does this imply acceptance of the validity of the grounds for the challenge.
If the other Party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge shall be a matter for the Secretariat of the Permanent Court of Arbitration. The Court shall decide on the admissibility and on the merits of the challenge after it has afforded an opportunity for the arbitrator concerned, the other Parties and the other members of the Arbitral Tribunal to comment in writing within a specified period of time. Such comments shall be communicated to the Parties and to the arbitrators, who may respond to them within the time period specified by the Secretariat of the Permanent Court of Arbitration.
- Replacement
In the event of an arbitrator's death, challenge, accepted withdrawal, resignation, or if there is a cause preventing him from fulfilling his duties, or upon request of all Parties, the arbitrator shall be replaced.
Any new arbitrator shall be nominated by the Secretariat of the Permanent Court of Arbitration within thirty (30) calendar days following a request by the first Party to take action or the remaining arbitrators.
(4) Procedural rules
(i) Terms of Reference
The Arbitral Tribunal shall draw up its Terms of Reference, signed for acceptance by the Parties and the arbitrators, and including at least the following:
(i) rules of procedure setting out the procedural rules expressly stipulated herein, and also setting out procedural formalities not expressly provided for under the terms of this Decision;
(ii) a summary of the facts and claims of each Party;
(iii) the arbitrators’ signed declarations of independence.
If the Arbitral Tribunal finds it necessary, during the proceedings, to take decisions regarding their organization (by means of “Procedural orders”), the Arbitral Tribunal shall take the decision it deems most appropriate with a view to the sound management of the proceedings, whilst ensuring that the Parties are treated equally and that each Party is given the opportunity of presenting his/her case. However, under no circumstances, except with the agreement of the Parties, shall there be any derogations from the rules expressly stipulated under the terms of this Decision.
(ii) Place of arbitration
The Arbitral Tribunal shall meet at the headquarters of the Customs Co-operation Council in Brussels
(Belgium).
(iii) Law applicable
The Arbitral Tribunal shall decide the dispute or claim by application of the standards laid down by the WCO and, failing that, by Belgian law or, if appropriate, the law designated by application of the rules of private international law as applied in Belgium.
The Parties agree that under no circumstances shall the Arbitral Tribunal take its decision on the basis of equitable principles, assume the powers of an amiable compositeur or decide ex aequo et bono.
(iv) Language of the arbitration
The arbitration proceedings shall take place in one of the official languages of the WCO (English, French), as determined by the Parties.
(v) Witness statements and experts
If either Party so requests, at any appropriate stage of the proceedings the Arbitral Tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument.
(vi) Interim measures of protection
The Arbitral Tribunal may, at the request of either Party, take any interim measures it deems necessary to preserve the respective rights of either Party or in respect of the matter in dispute.
Such interim measures may be established in the form of an interim award. The Arbitral Tribunal shall be entitled to require security for the costs of such measures.
A request for interim measures addressed by either Party to a judicial authority shall not be deemed
incompatible with the agreement to arbitrate, or as a waiver of that agreement.
(vii) Settlement during proceedings
If, before the award is made, the Parties agree on a settlement of the dispute, the Arbitral Tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both Parties and accepted by the Tribunal, record the settlement in the form of an arbitral award on agreed terms.
(viii) Costs and expenses of arbitration
- Advance(s)
An advance payment shall be made in respect of the costs of arbitration; it shall be estimated by the Arbitral Tribunal on the basis of the amount of the principal claims and of any counterclaims, according to the Scale of Arbitration Costs of the Belgian Centre for Arbitration and Mediation (CEPANI) in effect on the date of Notice of arbitration.
- Attribution
The Arbitral Tribunal shall decide upon the final amount of the costs of arbitration in the framework of the final award, in the light of the services rendered and the costs incurred.Unless the Parties agree otherwise, in principle the costs of arbitration shall be divided equally between the Parties. However, the Arbitral Tribunal may decide on a different apportionment of the costs if it determines that this is reasonable taking into account the circumstances of the case, provided however that it states the reasons for this decision. Unless the Parties agree otherwise, each Party shall bear the costs it has incurred for legal representation and assistance. However, the Arbitral Tribunal, taking into account the circumstances of the case, shall be free to determine which Party shall bear such costs or may apportion them between the Parties if it determines that this is reasonable, provided however that it states the reasons for this decision.
(ix) Confidentiality
The Parties and the arbitrators undertake to ensure the confidentiality of the arbitral proceedings.
(5) Arbitral Award
(i) Final award, stating the reasons on which it is based No later than three (3) months after the closing of the proceedings, the Arbitral Tribunal, by majority decision, shall render its final award, stating the factual and legal grounds on which it is based, and communicate it to the Parties.
The Parties agree to accept the arbitral award rendered in accordance with the foregoing provisions as constituting final settlement of the claim or dispute. The award may be made public, in whole or in part, only with the consent of both Parties unless the Arbitral Tribunal decides otherwise, stating the reasons for its decision, following a specific request made by a Party in the framework of the arbitral proceedings.
(ii) Interpretation of the award
Within twenty (20) calendar days after receipt of the final award or of the corrections made thereto in application of paragraph 5 (iii) below, either Party, with notice to the other Party, may request that the Arbitral Tribunal give an interpretation of the award. The interpretation shall be given in writing within twenty (20) calendar days after receipt of the request. The interpretation shall form part of the award.
(iii) Correction of the award Within twenty (20) calendar days after receipt of the final award or of the interpretation given thereof in application of paragraph 5 (ii) above, either Party, with notice to the other Party, may request the Arbitral Tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of a similar nature. The Arbitral Tribunal may, within twenty (20) calendar days after the communication of the award to the Parties, make such corrections on its own initiative.
(6) Privileges and immunities
The Council declares that no provision contained in the present arbitration clause will be considered by it as a waiver, either explicit or implicit, of any privilege or immunity which it may enjoy in law or by virtue of its statute.”
