SmartCon terms of use

Overview

Version 2.0, Date: October 2019.

Clause 1 - Applicable Terms

  1. The Use of the BIMCO SmartCon system (“SMARTCON”) shall be governed by these Terms of Use or any amendment hereof (“TERMS”). We may from time to time modify these TERMS (see Clause 9.1). Your use of SMARTCON is subject to the current version of the TERMS published on BIMCO’s website.
  2. SMARTCON consist of 8 parts all governed by the TERMS. They are

    1. Copies of Microsoft Word DOCX-file format versions of BIMCO contracts, contracts approved by BIMCO and other third-party contracts that BIMCO may make available (together the “CONTRACTS”)
    2. Copies of Adobe PDF-file format versions of CONTRACTS available in 2 ways (together the “OUTPUT”)
    3. The SMARTCON Add-in (”ADDIN”)
    4. The SMARTCON guest users ("GUEST")
    5. The SMARTCON database (“DATABASE”)
    6. The BIMCO Customer Relationship Management database (“CRM”)
    7. The Microsoft Azure cloud infrastructure (“AZURE”)
    8. The SMARTCON Storage (“STORAGE”)
  3. By filling out the registration details and by ticking the “I accept the BIMCO SmartCon Terms of Use” checkbox below this document you shall be deemed to have accepted these TERMS including the provisions on choice of law and jurisdiction.
  4. The TERMS refer to the BIMCO Privacy Policy (hereinafter the “POLICY”) which you by ticking “I accept the BIMCO Privacy Policy” shall be deemed to individually have accepted. By accepting the TERMS and POLICY you acknowledge and accept the way we will manage your company and personal data in SMARTCON.
  5. These TERMS and POLICY constitute a binding agreement between you and BIMCO Informatique A/S (hereinafter “BIAS”).

Clause 2 - Authorisation

  1. You are hereby authorised to use SMARTCON only on the basis set out in these TERMS and provided payments, considerations and all other user obligations according to the TERMS are complied with by you at all times.
  2. BIAS grants you a limited, non-exclusive and not transferable license for the sole purpose of using SMARTCON with the personal password provided and maintained by you during the subscription period, Software-as-a-Service period or the Pay-As-You-Go period.

    1. You are authorised to edit, store and manage copies of CONTRACTS in consideration of payment as specified in Clause 3 and to insert and edit individual text into the CONTRACTS.
    2. You are authorised to use the SmartCon section of the BIMCO website from which you manage your SmartCon account.
    3. You are authorised to install and use the ADDIN on as many computers as you wish.
    4. You are authorised to setup and grant GUEST users access to participate in the editing process of your CONTRACTS to the extent such contracts are to be used by and entered into with you. GUEST users are excluded from A,B and C above and as no-name profiles governed and bound under your acceptance of the TERMS.
  3. Hardcopy printing of the OUTPUT is available in 2 ways, either as final or working copies. You determine whether the OUTPUT is sent to you via designated or arbitrary email addresses using the ADDIN, or by you from BIMCO’s website as downloads.
  4. The OUTPUT, including hardcopy prints and PDF-files, may only be used for the specific single contracting purpose for which a CONTRACT has been edited by you and may not be reproduced fully or in part for any other purpose (including, but not limited to, for the purpose of using the OUTPUT as a template contract). Furthermore, CONTRACTS may not be used, edited, or copied (in parts or in full) for any purpose after the expiry of the subscription period, Software-as-a-Service period or Pay-As-You-Gg period.

Clause 3 - Payments

  1. You will be charged for the use of the CONTRACT editing functions of SMARTCON in accordance with the latest pricelist published on the BIMCO website. SMARTCON is available in two different versions as detailed in the pricelist. The subscription version requires the payment of a yearly subscription fee which is payable on the commencement of the SMARTCON agreement (including the TERMS) and thereafter every year on the anniversary date of the commencement of the classic subscription or Software-as-a-Service subscription. The Pay-As-You-Go version of SMARTCON requires no subscription but a fee for use of SMARTCON for a limited period.
  2. You will be charged for producing final copies of the OUTPUT in accordance with the current price list published on BIMCO’s website. You may print an unlimited number of draft OUTPUT free of charge.
  3. BIAS may from time to time amend the fees for using SMARTCON or parts thereof, but will notify users at least thirty days’ in advance of any change.
  4. Fees and any taxes charged shall be due and payable according to the price list or individual agreements with your company.
  5. The classic subscription and Software-as-a-Service subscription to SMARTCON expires automatically one (1) year from the date of commencement, unless renewed. Use of the Pay-As-You-Go version runs for a limited period in days as set out in the latest price list.
  6. Should you regret your purchase of SMARTCON, we can refund the subscription or the Pay-as-you-go option (needs to be before any finals has been produced and within 14 days of payment date). However the start-up fee is charged to setup the account and will not be refunded.

Clause 4 - Data Storage

  1. Included in your SmartCon account a limited STORAGE of 1 GB (GigaByte) is available. The STORAGE can only be used to store CONTRACTS and its use depends on your user profile.
    1. If you use SmartCon classic subscription or Pay-As-You-Go you are free to decide where you store the CONTRACTS with your individual text and/or amendments made by you or with whom you share the editing right. By default, CONTRACTS are not stored on SMARTCON nor in STORAGE. If you decide to consent to store a copy of CONTRACTS during the hard copy final print process you allow SMARTCON to keep backup copies of all your finalised CONTRACTS. If you decide to store CONTRACTS on STORAGE you allow SMARTCON to store any version of CONTRACTS.
    2. If you use SmartCon Software-as-a-Service, you accept to store all CONTRACTS on STORAGE.
  2. No matter whether you choose or your version of SMARTCON requires you to store CONTRACTS in SMARTCON in accordance with the above clause 4.1, your CONTRACTS will be stored in the DATABASE at your own risk and BIAS shall not be liable for any direct, indirect or consequential damages whatsoever as a consequence of any loss of data, malfunction or unavailability of any such data stored with BIAS, save where such loss of data has been caused by BIAS’s gross negligence.
  3. Notwithstanding the above BIAS reserves its right to delete any stored data under an account which (i) has not been active (Payments not honoured) for 6 months, or which (ii) contains information that contravenes or violates criminal laws, mandatory provisions or public order, policy or customs.
  4. Subject to the above, BIAS shall act only in accordance with instructions from you in relation to your stored data in the CRM, DATABASE and AZURE systems, as data responsible. BIAS has taken reasonable necessary technical and organisational safety measures to prevent that data are intentionally or illegally destroyed, lost or deteriorated, to prevent the data being made available to persons other than yourself (or persons authorised by you) and to prevent the data being used inappropriately, abused or otherwise treated in violation of the Danish or EU data protection laws by any unauthorised person.
  5. Subject to above BIAS shall act in accordance with the PRIVACY POLICY and by accepting the TERMS and PRIVACY POLICY you shall be deemed to have declared to BIAS that the storing of the data with BIAS as requested by you from time to time complies with the provisions in the Danish Data Protection Act or the Regulation (EU) 2016/679 of 27 April 2016 (the GDPR).
  6. After expiry of your subscription and upon request, BIAS will send you in PDF-file format any OUTPUT data stored by you in the DATABASE. BIAS reserves the right to delete any unclaimed data belonging to an expired registered account six (6) months after the date of expiry.
  7. We may from time to time analyse data from SMARTCON to help us improve SMARTCON and our CONTRACTS with the aim of providing you with a better service. All such data will be handled in the strictest confidence and all results from any analysis will be anonymised.

Clause 5 – Personal Data

  1. By accepting the TERMS and POLICY you specifically accept that BIAS will handle the following types of personal data or traces of personal data on your behalf.
  2. You also accept that this data will reside in an environment controlled by BIAS, but not owned by BIAS. Our operational environment comprises a combination of private and public cloud. In both environments we have implemented procedures as described under 4.4
  3. The following types of personal data may be processed by BIAS for the purpose of allowing you to use SMARTCON:

    1. CRM data: name, email, phone number, credit card details and company details.
    2. DATABASE data: name, email, groupings and different kinds of logging information with traces of your DATABASE changes and events. Temporary storage of CONTRACT data during processing and, in case you have positively opted to store CONTRACT data, persistent for the duration of your account ref. 4.6. Storage of OUTPUT data for the duration of your account ref. 4.6
    3. AZURE data: email, password, grouping details. Different kinds of logging information of where and when you access and use CONTRACTS. This include date, time, IP address, filename and client platform (for example, the operating system or the browser)

Clause 6 - Warranties, Disclaimers and Limitation of Liability

  1. Except as expressly provided otherwise in a written agreement between you and BIAS, all materials and services in SMARTCON are provided on an “as is” basis without warranty of any kind, whatsoever, either express or implied, including, but not limited to warranties of merchantability or fitness for a particular purpose. Without limiting the foregoing, BIAS makes no warranty that (i) the services and materials will meet your requirements or that (ii) any errors in the software obtained from using SMARTCON will be corrected. Any implied warranties are limited to ninety (90) days after entering into the SMARTCON agreement, including the TERMS.
  2. Technical inaccuracies or typographical errors could occur using SMARTCON. BIAS may make changes to the CONTRACTS and other parts of SMARTCON, including the prices and descriptions of any products listed herein, at any time without notice. 
  3. The use of the services provided by SMARTCON is at your own discretion and risk and with your agreement that you will be exclusively responsible for loss of data stored on, or any other unusual malfunction to your computer (or physical or online storage device) that results from using SMARTCON. No advice or information, whether oral or written, obtained by you from BIAS or through or from SMARTCON creates any warranty not expressly stated in the TERMS.
  4. Termination shall be your only remedy against BIAS for (i) any event where you for any reason are dissatisfied with (a) SMARTCON or BIAS, including any provision of these TERMS or any changes made to them in accordance with this agreement; (b) your ability to access and use SMARTCON parts; or (c) the amount and type of fees incurred by you or (ii) any event of default from BIAS.
  5. BIAS makes no warranty for any minimum operation (up-time) period of SMARTCON. And any interruption of the services of SMARTCON whether due to maintenance, repair or other malfunction shall not entitle you to any refund of part of the classic subscription, Software-as-a-Service subscription or Pay-As-You-Go fee. 
  6. BIAS shall not be liable for any liability for direct, indirect, or consequential damages, including but not limited to loss of profits, loss of business, loss of savings, losses due to breach of data protection obligations, losses caused by interruption of operations and the costs of reproduction or repair of wholly or partially lost data and/or information.
  7. By enabling the "Auto-fill” feature you give BIAS express permission to store information such as company names, addresses and vessel details in the mini-database. The "auto-fill feature" and associated "mini-database" lets you easily complete entry of the contract data fields. If enabled, SMARTCON automatically saves some of the information you enter when editing CONTRACTS. BIAS or BIMCO accepts no responsibility or liability for the validity of the content stored in the mini-database.

Clause 7 - Force Majeure

  1. BIAS is not liable for any loss incurred due to an interruption of the service or failure to deliver such service caused by incidents beyond BIAS’s reasonable control, including but not limited to thunder storms, fire, floods, strikes and lockouts, network overload, malfunctions in external networks, servers and system breakdowns.

Clause 8 - Copyright

  1. The software and all intellectual property rights in and to the software that comprises SMARTCON is protected by copyright or other intellectual property rights and is owned by BIAS unless otherwise stated and may only be used in accordance with the TERMS.
  2. All CONTRACTS, all BIMCO clauses, indexes, menus and all information, software, images, illustrations, graphics, text, etc., used in SMARTCON are protected by copyright and all intellectual property rights hereto are the property of BIMCO, unless otherwise stated. Any attempt to copy, view, publish or otherwise using or reproduce these materials by you, or anyone else is, unless specifically permitted by the TERMS, prohibited and may violate copyright laws, trademark laws and/or other regulations and statutes.
  3. Microsoft Word and Azure are protected by copyright of Microsoft Corp. 
  4. No right, title or interest in any material found in SMARTCON is transferred to you as a result of the authority to use SMARTCON according to the TERMS. BIAS reserves complete title and full intellectual property rights in any content you print from SMARTCON. Except as expressly provided above, you may not copy, reproduce, modify, publish, distribute, transmit, transfer or create derivative works from the content without obtaining prior written consent of BIAS.
  5. You may not on a temporary or permanent basis without the prior written consent of BIAS rent, lease, sub-license, sell, assign, pledge or otherwise transfer the SMARTCON agreement, including the TERMS.
  6. You are not permitted to reverse engineer, decompile and/or disassemble SMARTCON or otherwise seek to obtain the source code of or to SMARTCON.

Clause 9 - Termination

  1. BIAS may from time to time modify these TERMS, but shall provide your company with at least thirty days’ notice of any change. Either party may terminate a subscription to SMARTCON with thirty days’ prior written notice. If you terminate your subscription to SMARTCON you shall not be entitled to a refund on any remaining proportion of the classic subscription, Software-as-a-Service (or any Pay-As-You-Go fee if using that version of SMARTCON).
  2. Notwithstanding 9.1 BIAS may terminate and/or suspend, without notice, your subscription or Software-as-a-Service to SMARTCON or use of the Pay-As-You-Go version if you fail, at any time, to comply with these TERMS or otherwise are in default with your obligations under this agreement. If BIAS terminates your subscription to SMARTCON in accordance with this Clause 9.2 you shall not be entitled to a refund on any remaining proportion of the subscription or Software-as-a-Service fee (or any Pay-As-You-Go fee if using that version of SMARTCON).

Clause 10 - Jurisdiction and Applicable Law

  1. These TERMS shall be governed by and construed under the laws of Denmark, without regard to choice of law principles.
  2. Any legal action with respect to any transaction subject to the TERMS must be commenced within one year after the cause of action has arisen. Any disputes relating to these TERMS or otherwise arising as a result of the use of the services on SMARTCON shall be subject to exclusive jurisdiction of the Danish Courts competent as principal jurisdiction for BIAS. By accepting this agreement, you are also accepting to be bound by the Danish courts and to have waived any claim that venue is improper for any reason with these courts.

 

Casper Broustbo
in Copenhagen, DK

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