Version 6.0, Date: 1 November 2023.
Clause 1 - Applicable Terms
- SMARTCON consists of 8 parts all governed by the TERMS. They are
- The SMARTCON contracts (“CONTRACTS”) which is either
- 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 “DOCX FORMS”).
- Copies of online versions of BIMCO contracts, contracts approved by BIMCO and other third-party contracts that BIMCO may make available (together the “ONLINE FORMS”).
- The SMARTCON Adobe PDF-file format versions of CONTRACTS the (“OUTPUT”)
- The SMARTCON Add-in (”ADDIN”)
- The SMARTCON guest users ("GUEST")
- The SMARTCON database (“DATABASE”)
- The BIMCO Customer Relationship Management database (“CRM”)
- The SMARTCON document repository (“REPOSITORY”)
- The SMARTCON Storage (“STORAGE”)
- These TERMS and POLICY constitute a binding agreement between you and BIMCO Informatique A/S (hereinafter “BIAS”).
Clause 2 - Authorisation
- 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.
- 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 or the Pay-As-You-Go period.
- 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.
- You are authorised to use the SmartCon section of the BIMCO website from which you manage your SmartCon account.
- You are authorised to install and use the ADDIN on as many computers as you wish.
- 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 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.
- The OUTPUT is available in 2 ways, either as final or working copies. You determine whether the OUTPUT is downloaded by you via an Internet Browser or sent to you via a designated or arbitrary email address.
- The OUTPUT 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 or Pay-As-You-Go period.
Clause 3 - Payments
- 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 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 subscription. The Pay-As-You-Go version of SMARTCON requires no subscription but a fee for use of SMARTCON for a limited period.
- 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 create an unlimited number of draft OUTPUT free of charge.
- 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.
- Fees and any taxes charged shall be due and payable according to the price list or individual agreements with your company.
- The subscriptions 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.
Clause 4 - Data Storage
- There are 3 different ways CONTRACTS and OUTPUT are stored in SMARTCON.
- By default, DOCX FORMS and OUTPUT are stored in the REPOSITORY when the OUTPUT is generated.
- By design, ONLINE FORMS can only be stored in the REPOSITORY.
- If you decide to change the storage settings and not store DOCX FORMS or OUTPUT in the REPOSITORY, you accept that any such files cannot be restored by BIAS and you also accept that BIAS may be unable to assist in related support questions that arise on files not stored in SMARTCON.
- STORAGE: A maximum of 1 GB (GigaByte) storage available for storing CONTRACTS only. This storage and its use depend on your user profile. As a user of “Regular SmartCon” you decide whether you store CONTRACTS on our system using STORAGE.
- LOCAL: If you are a user of “Regular SmartCon” you can store your CONTRACTS and OUTPUT locally on your own system at your own responsibility.
- No matter what you choose to store in SMARTCON in accordance with the above clause 4.1, your CONTRACTS and OUTPUT will be stored in REPOSITORY or STORAGE 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.
- 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.
- Subject to the above, BIAS shall act only in accordance with instructions from you in relation to your stored data in the SMARTCON 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.
- After expiry of your subscription or Pay-As-You-Go account.
- You may request BIAS to provide copy of all OUTPUT data stored in the REPOSITORY belonging to your account.
- You may request BIAS to delete all CONTRACT and OUTPUT, no matter where it is stored in SMARTCON belonging to your account. Any such action is irreversible.
- BIAS reserves the right to delete all CONTRACT and OUTPUT, no matter where stored in SMARTCON belonging to an expired registered account six (6) months after expiry.
Clause 5 –Use of AI
SmartCon has artificial intelligence (AI) features (“AI Features”). The AI Features are integrated by default but can be disabled by the user. It is your decision to use the AI Features.
The AI Features of SmartCon are provided by a third party provider, Microsoft Azure OpenAI (“MSOpenAI”). If you decide to use the AI Features, you acknowledge that their use is subject to the Microsoft Azure OpenAI Code of Conduct. Your data will not be made public or shared with any third parties.
The output insights generated and returned by the AI Features (“AI Output”) are based on the metadata processed on and through the MSOpenAI platform (“AI Input”), the Input and Output shall collectively be referred to herein as “Content”. You are solely responsible for ensuring that the Content complies with applicable laws and Code of Conduct. To the extent permitted under applicable laws or the MSOpenAI Code of Conduct, you are the owner of the AI Input and granted rights to the AI Output. The Content may be used for any legal and lawful purpose, including commercial purposes and publication, at your own risk.
BIMCO does not guarantee the accuracy of any AI Output generated by the AI Features. Given the probabilistic nature of AI, use of our AI Features may in some situations result in incorrect AI Output that does not accurately reflect the action generated. It is your responsibility to evaluate the accuracy of any AI Output.
The AI Features are provided on an “as is” and “as available” basis. BIMCO makes no representations or warranties of any kind, express or implied, as to the operation of the AI Features, or the information, text, and content included in the AI Output, or the use of the AI Input, including without limitation, accuracy of the results, availability, suitability, reliability, or content of any information provided through the AI Features. BIMCO accepts no liability or responsibility arising in any way from the use of the AI Features or any errors or omissions contained in the Content.
We analyse data from SMARTCON by using AI and Machine Learning to provide and improve features in SMARTCON and related products. This data can further be used to assist BIMCO’s contractual work by analysing the use of CONTRACTS. The foundation for processing contract and clause data is guarded by only using anonymised versions of CONTRACTS which exclude all sensitive information. You can always opt out of this.
You must ensure that the input of personal data, its use with regard to the AI features and the use of AI Output, if containing personal data, complies with the requirements of the GDPR as you remain to be the data owner. We or our service providers process the data on your behalf and in accordance with the requirements of the concluded contract on commissioned processing. It is prohibited to use and enter special categories of data according to Art. 9 GDPR or information that is subject to trade secret protection for the user’s or a third party’s company, when using our AI features. Furthermore, it is prohibited to use the AI features for illegal purposes.
Clause 6 – Personal Data
- 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.
- 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 clouds. In both environments we have implemented procedures as described under 4.4
- The following types of personal data may be processed by BIAS for the purpose of allowing you to use SMARTCON:
- CRM data: name, email, phone number, credit card details and company details.
- DATABASE data: name, email, groupings and different kinds of logging information with traces of your database changes and events. email, password, grouping details. Different kinds of logging information of where and when you access and use CONTRACTS and OUTPUT. This includes date, time, IP address, filename and client platform (for example, the operating system or the browser)
- REPOSITORY and STORAGE data: Temporary storage of CONTRACT and OUTPUT data during processing and depending on your choice CONTRACT and OUTPUT persistent for the duration as described in 4.6.
- Based on a combination of use of CONTRACTS and consent to receive marketing information, BIMCO reserves the right to send relevant information and offers to users.
Clause 7 - Warranties, Disclaimers and Limitation of Liability
- 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.
- 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.
- 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.
- 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.
- 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 subscription or Pay-As-You-Go fee.
- 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.
Clause 8 - Force Majeure
- 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 9 - Copyright
- 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.
- 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 use 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.
- Microsoft Word and Microsoft Azure are protected by copyright of Microsoft Corp.
- 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.
- 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.
- 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 10 - Termination
- 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 SMARTCON subscriptions or any Pay-As-You-Go fee if using that version of SMARTCON.
- Notwithstanding 10.1 BIAS may terminate and/or suspend, without notice, your subscription 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 10.2 you shall not be entitled to a refund on any remaining proportion of the subscription fee or any Pay-As-You-Go fee if using that version of SMARTCON.
Clause 11 - Jurisdiction and Applicable Law
- These TERMS shall be governed by and construed under the laws of Denmark, without regard to choice of law principles.
- Any legal action with respect to any transaction subject to the TERMS must commence 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.