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TERMS AND CONDITIONS
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE USING THE WEBSITE

These terms and conditions together with our privacy policy ("Terms and Conditions") form a legal agreement between you and BIMCO Informatique A/S, a limited company incorporated in Denmark having its registered office address at Bagsvaerdvej 161, 2880 Bagsvaerd, Denmark for the Services (as defined below) and your use of the Website (as defined below).

You warrant that if you are agreeing to these Terms and Conditions on behalf of a body corporate or an unincorporated body that you have authority to contractually bind such body corporate or unincorporated body and these Terms and Conditions shall apply to such body corporate or unincorporated body.

1. APPLICABILITY OF THESE TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE WEBSITE AND THE PROVISION BY US OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS

PLEASE DO NOT USE THE WEBSITE OR REQUEST US TO PERFORM THE SERVICES FOR YOU. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE AS SET OUT BELOW.

In these Terms and Conditions, the following words and phrases shall have the following meanings:

  • Confidential Information means any information, however it is conveyed, that relates to the business affairs, developments, trade secrets, know-how, personnel and suppliers of either party, including Intellectual Property Rights of either party, together with all information derived from the above and any other information clearly designated as being confidential (whether or not it is marked as confidential) or which ought reasonably to be regarded as confidential;
  • Customer Data means the data provided to us by you to allow us to perform the Services and prepare the Report on Your behalf;
  • Database means the database of the Shipping KPI System;
  • Disclosing Party means the party disclosing Confidential Information under or pursuant to these Terms and Conditions;
  • Field means key performance indicators for the maritime industry;
  • Force Majeure Event has the meaning set out in clause 11;
  • Intellectual Property Rights means patents, trade marks, service marks, design rights (whether registerable or otherwise), domain names, copyright, know-how, database rights, trade or business names and other intellectual or industrial property rights whether registerable or not in any country, together with any applications for registration in relation to any of the foregoing;
  • Licence means the Software Licence and the Services Licence;
  • Permitted Users has the meaning set out in clause 9.2;
  • Purpose has the meaning set out in clause 4.7;
  • Receiving Party means the party receiving Confidential Information under or pursuant to these Terms and Conditions;
  • Report means the report in the Field issued by us to you forming part of the Services;
  • Services means the Report and at our sole discretion may include the provision of the Software;
  • Services Licence has the meaning set out in clause 4.9;
  • Software means any object code that we may agree to make available to you as part of the Services, such agreement by us to be set out in writing in accordance with the terms of Clause 3.2;
  • Software Licence has the meaning set out in clause 4.10;
  • Third Party Content has the meaning set out in clause 7;
  • Us, our and we means BIMCO Informatique A/S, a company incorporated in Denmark having its registered office address at Bagsvaerdvej 161, 2880 Bagsvaerd, Denmark;.
  • Website means the website www.shipping-kpi.org, www.shipping-kpi.net and www.shipping-kpi.com and including such other website whereby we provide information in the Field and advertise the Services;
  • You and your means you, the person using the Website and asking for the provision of the Services together with Your employees, agents and subcontractors.
  • Business Day means Monday to Friday excluding public holidays.

If there is any inconsistency between these Terms and Conditions and any document incorporated by reference, these Terms and Conditions will prevail.

If you have any questions about the Website, or in the event that you have any complaint or dispute regarding the Services, you should contact our support services team at supportshipping-kpi.org.

Your attention is drawn to our privacy policy which sets out how we process and protect your personal data.

2. AMENDMENTS TO THESE TERMS AND CONDITIONS

We reserve the right to amend these Terms and Conditions without prior notice. Any material changes to these Terms and Conditions will be notified on the Website. The changes will apply to the use of the Website once notified. Use of the Website after such notification will be considered as confirmation to be bound by the new Terms and Conditions.

3. SERVICES

  1. In the event that you wish us to provide the Services, a request for such is made via the Website. We reserve the right to refuse to perform the Services at our absolute discretion.
  2. In the event that we agree to perform the Services, We will confirm such to you in writing. The Services will be charged according to the pricelist provided on the website. We will undertake the Services within a reasonable period and using reasonable skill and care but beyond this no warranty is given. These Terms and Conditions apply to your use of the Website and the Services and therefore shall apply whether we agree to perform the Services or not.
  3. You are required to provide the Customer Data to us to enable us to perform the Services. In no event shall we have any liability to you for any loss, damage or corruption of the Customer Data.
  4. You warrant that no part of the Customer Data shall adversely impact on the Website and the Database and that the Customer Data does not infringe third party rights, including third party Intellectual Property Rights.
  5. You may only use the Report, the Services and the Software for lawful purposes.
  6. Except as expressly set out in these Terms and Conditions or as permitted by law, you undertake:
    1. not to copy the Software except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
    2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
    3. not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
    4. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
      1. is used only for the purpose of achieving inter-operability of the Software with another software program;
      2. is not disclosed or communicated without our prior written consent to any third party, cf. also clause 9; and
      3. is not used to create any software which is in any way similar to the Software.

4. INTELLECTUAL PROPERTY RIGHTS

  1. Any and all Intellectual Property Rights in and to the Customer Data shall belong to you.
  2. Any and all Intellectual Property Rights in and to the Website are and shall remain our exclusive property.
  3. Any and all Intellectual Property Rights in and to the Report shall be and shall remain our exclusive property and the only rights you have to the Report shall be as set out in the Licence.
  4. Any and all Intellectual Property Rights in and to the Database shall belong exclusively to us and/or our licensors.
  5. Any and all intellectual Property Rights in and to the Software shall belong exclusively to us and/or our licensors.
  6. By agreeing to these Terms and Conditions you hereby grant to us a non-exclusive, royalty free License in and to the Customer Data to allow us to perform the Services and to prepare the Report on Your behalf.
  7. By agreeing to these Terms and Conditions you acknowledge and agree that we may use the Customer Data to provide Services to third parties in the Field (the Purpose).
  8. The Database is a collection of Third Party Content. To allow us to continue to provide services in the Field to third parties, you hereby grant to us a non-exclusive, royalty free, non-revocable, sub-licensable License to the Customer Data for the Purpose. We hereby undertake that the Customer Data shall only be used for the Purpose and further shall only be used by us in an aggregated form with Third Party Content as part of the Database.
  9. In consideration of you agreeing to abide by the Terms and Conditions, we hereby grant to you a non-exclusive, revocable, non-transferable, non-sub licensable License to use the Report in the Field for your own internal business purposes and for no other purposes whatsoever (the Services Licence).
  10. In the event that we agree to make available to you the Software as part of the Services, we agree to grant to you a non-exclusive revocable, non-transferable, non-sub licensable License to use the Software in the Field for your own internal business purposes and for no other purpose whatsoever (the Software Licence).

5. NO WARRANTY

WE WILL ENDEAVOUR TO PROVIDE THE SERVICES, THE SOFTWARE AND THE REPORT USING REASONABLE SKILL AND CARE. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, WE MAKE NO FURTHER WARRANTY OR REPRESENTATION OF ANY NATURE, WHETHER EXPRESS OR IMPLIED, IN RELATION TO THE SERVICES, THE REPORT, THE SOFTWARE OR THE DATABASE. ANY IMPLIED WARRANTIES OR CONDITIONS RELATING TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE, COMPLETENESS OR ACCURACY ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

OTHER THAN EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS WE MAKE NO WARRANTY AS TO THE ACCURACY, RELIABILITY OF THE MATERIALS SUPPLIED BY US, THE SERVICES, THE SOFTWARE, THE DATABASE OR THE REPORT OR THE ACCURACY OF ANY INFORMATION OBTAINED BY YOU THROUGH THE USE OF THE SERVICES, THE SOFTWARE OR THE REPORT.

BY AGREEING TO THESE TERMS AND CONDITIONS YOU ACKNOWLEDGE THAT THE SOFTWARE HAS NOT BEEN DEVELOPED FOR YOU. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS WE MAKE NO WARRANTY THAT THE SOFTWARE OR THE DATABASE WILL BE SECURE OR WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR BUGS.

THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS CLAUSE 5 AND THE EXCLUSIONS OF LIABILITY HEREIN ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES.

6. LIMITATION OF LIABILITY

These Terms and Conditions set out the full extent of our obligations and liabilities in respect of the supply of the Services and/or the Report. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in these Terms and Conditions. Any condition, warranty, representation or other term concerning the supply of the Services and/or the Report which might otherwise be implied into, or incorporated in, these Terms and Conditions, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

Subject to the other provisions of this clause, Our maximum aggregate liability under or in connection with these Terms and Conditions, or any collateral contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, shall under no circumstances exceed a sum equal to the amount paid by you to us for the Services.

In no event shall either party (including its respective agents and sub-contractors) be liable for:

  1. any loss of profits, loss of data, loss of contracts, loss of goodwill (whether direct or indirect); or
  2. any indirect or consequential losses of any nature whatsoever; whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss.

7. THIRD PARTY CONTENT

The Services, the Report and the Database provide content and resources belonging to third parties (Third Party Content) and while we take reasonable steps to ensure that material included on the Database and/or in the Report is correct, reputable and of high quality and does not infringe third party rights, we do not make any warranties or guarantees in relation to Third Party Content and will not be held liable to you for any such Third Party Content. If we are informed of any inaccuracies in the Third Party Content contained in the Report, these will be corrected as soon as reasonably possible.

8. INDEMNITY

You agree to fully indemnify, defend and hold us, our officers, directors, employees and agents harmless immediately on demand, from and against all losses, damages, costs, claims, demands, liabilities and expenses whatsoever (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses), arising out of any breach of these Terms and Conditions by you, your employers or agents.

9. CONFIDENTIALITY

  1. The Receiving Party agrees that it shall at all times maintain the confidentiality of the Confidential Information of the Disclosing Party.
  2. The Receiving Party may only use the Confidential Information of the Disclosing Party for the purposes of and in accordance with this Terms and Conditions. The Receiving Party may provide its employees and officers (Permitted Users) with access to the Confidential Information of the Disclosing Party on a strict "need-to-know" basis only. The Receiving Party shall ensure that each of its Permitted Users is bound to hold all Confidential Information of the Disclosing Party in confidence to the standard required under these Terms and Conditions.
  3. The Receiving Party acknowledges and agrees to enter into and procure that its Permitted Users enter into any written confidentiality agreement in respect of the Confidential Information of the Disclosing Party that may be required by the Disclosing Party.
  4. This clause 9 shall not apply to any Confidential Information of the Disclosing Party which:
    1. is in or subsequently enters the public domain other than as a result of a breach of this clause 9;
    2. has been or is subsequently received by the Receiving Party from a third party which is lawfully entitled to disclose the same;
    3. is required to be disclosed by law; or
    4. is required to be used by us solely for the Purpose.

10. TERMINATION

Without prejudice to any other right or remedy available to us, we may terminate the Licence and/or these Terms and Conditions immediately without liability to you if:

  1. You commit a material or persistent breach of these Terms and Conditions which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so;
  2. a petition for a bankruptcy order to be made against you has been presented to a court of competent jurisdiction;
  3. an order is made or a resolution is passed for your winding up, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to you;
  4. an order is made for the appointment of an administrator to manage your affairs, business and property, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of you, or notice of intention to appoint an administrator is given by you or your directors;
  5. a receiver is appointed of any of your assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of you, or if any other person takes possession of or sells your assets;
  6. You make any arrangement or composition with your creditors, or make an application to a court of competent jurisdiction for the protection of your creditors in any way, or become bankrupt;
  7. You cease, or threaten to cease, to trade; or
  8. You take or suffer any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

You are obliged to inform us about the occurrence of any relevant developments in relation to the above instances, including but not limited to a petition for a bankruptcy order, an order or resolution for your winding up.

Upon termination for any reason:

  1. all rights granted to You under these Terms and Conditions shall automatically cease;
  2. the License shall terminate automatically and You must cease all activities authorised by the License;
  3. You must immediately pay to Us any sums due to Us under these Terms and Conditions; and

Termination of these Terms and Conditions, however arising, shall not affect or prejudice the accrued rights of the parties as at termination and the terms of clauses which shall extend post termination.

11. EVENTS OUTSIDE OUR CONTROL

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms and Conditions that is caused by an event outside our reasonable control (Force Majeure Event). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

  1. strikes, lock-outs or other industrial action;
  2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
  3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
  4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
  5. impossibility of the use of public or private telecommunications networks;
  6. delays, losses, errors or omissions in or made by the postal or other delivery service or by the banking system;
  7. the acts, decrees, legislation, regulations or restrictions of any government; and
  8. failure of any telecommunications system.
Our performance under these Terms and Conditions is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to find a solutions by which our obligations under these Terms and Conditions may be performed despite the Force Majeure Event, if possible.

12. WAIVER

If we fail, at any time to insist on strict performance of any of your obligations under these Terms and Conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under these Terms and Conditions, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any preceding or subsequent default. No waiver by us of any of these Terms and Conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

13. SEVERABILITY

If any term, condition or provision of these Terms and Conditions (or part of any term, condition or provision) are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

14. ENTIRE AGREEMENT

These Terms and Conditions and any document expressly referred to in them constitute the whole agreement between you and us and supersede any previous arrangement, understanding or agreement between you and us, relating to the subject matter hereof.

You and us both acknowledge that, in entering into these Terms and Conditions (and the documents referred to in them), neither of you or us relied on any statement, representation, assurance or warranty of any person (whether a party to these Terms and Conditions or not) other than as expressly set out in these Terms and Conditions.

Nothing in this clause 14 shall limit or exclude any liability for fraud.

15. TRANSFER

You may not transfer, assign or novate any of your rights or obligations under these Terms and Conditions to any third party. We may transfer, assign or novate any of our rights and/ or obligations under these Terms and Conditions to a third party.

16. NO PARTNERSHIP OR AGENCY

Nothing in these Terms and Conditions will be construed as creating any agency, partnership, joint venture or any other form of joint enterprise between you and us.

17. NOTICES

All notices given by you to us regarding Shipping-KPI must be addressed at supportshipping-kpi.org . We may give notice to you at either the email or postal address you provided to us when requesting the Services. Notice will be deemed received and properly served 24 hours after an email is sent, or ten (10) days after the date of posting of any letter by first class recorded delivery mail or registered air mail (as relevant). In proving the service of any notice, it will be for the sender to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

All other notices given by you to us must be given to BIMCO Informatique A/S using itbimco.org. Such notices will be served within 1 Business Day after an email is deemed received.

18. LAW AND JURISDICTION

These Terms and Conditions and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Danish law.

By agreeing to these Terms and Conditions it is also irrevocably agreed that the Maritime and Commercial High Court of Denmark shall exclusively settle any disputes, which may arise out of or in connection with the Terms and Conditions or their subject matter or formation, including non-contractual disputes or claims.

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