Clause 1 - Applicable Terms

1. The Use of the BIMCO SHIPPING-KPI system (“SHIPPING-KPI”) shall be governed by these Terms of Use or any amendment hereof (“TERMS”). These TERMS replace any prior written BIMCO Shipping-KPI terms of use. We may from time to time modify these TERMS (see Clause 10.1). Your use of SHIPPING-KPI is subject to the latest and at any time current version of the TERMS published on BIMCO’s website.
2. SHIPPING-KPI consist of below parts all governed by the TERMS. They are
1. The SHIPPING-KPI purpose (“PURPOSE”) as defined in clause 2.
2. The SHIPPING-KPI Service (“SERVICE") as defined in clause 2.
3. The SHIPPING-KPI Reports (“REPORTS”) as defined in clause 2.
4. The SHIPPING-KPI database (“DATABASE”) as defined in clause 5.
5. The SHIPPING-KPI Personal Data (“PERSONAL DATA”) as defined in clause 6.
6. The SHIPPING-KPI Customer Data (“YOUR DATA”) as defined in clause 4.
7. The SHIPPING-KPI Comparing Data (“COMPARATIVE DATA”) as defined in clause 4.
8. The BIMCO Customer Relationship Management database (“CRM”)
3. By ticking the “I accept the BIMCO SHIPPING-KPI Terms of Use” checkbox during logon to SHIPPING-KPI 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 shall be deemed to form an integral part of these TERMS. By accepting the TERMS as described in Clause 3 you acknowledge and confirm to have read and understand the way we will manage your company and personal data in SHIPPING-KPI.
5. These TERMS and POLICY constitute a binding agreement between you and BIMCO Informatique A/S (hereinafter “BIAS”).

Clause 2 – Purpose and Service

1. SHIPPING-KPI is a tool for the global shipping industry to report and benchmark information on operational performance. It uses a standard of performance indicators to allow a more specific and accurate comparison of ships across different types and sectors.
2. The SHIPPING-KPI must only be used by shipping companies to:
• Compare their business performance against the industry average and identify where improvements can be made; and
• Clearly communicate the performance of their ship operation activities to internal and external stakeholders
3. SHIPPING-KPI is designed to protect the confidentiality of your company data (“YOUR DATA”). YOUR DATA is collected from input from your company and will only be accessible to you. YOUR DATA will be available to others only on an anonymised basis.
4. The SHIPPING-KPI is a tool for ship owners, operators and managers allowing them to benchmark and monitor their company, fleet and ship performance. Benchmarking is done by using the report generator in SHIPPING-KPI. All output from the report generator defines the REPORTS. When comparing data, you as receiving part must only use SHIPPING-KPI to compare against your own fleet or your own ships. The data you compare with is data entered by others (“COMPARATIVE DATA”) and anonymised for use in your REPORTS.

Clause 3 - Authorisation

1. You are hereby authorised to use SHIPPING-KPI 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 SHIPPING-KPI in accordance with the PURPOSE and with the personal password provided and maintained by you during the subscription period.
1. You are authorised to use the SERVICE.
2. You are authorised to use the SHIPPING-KPI website from which you manage your SHIPPING-KPI account.
3. You are authorised to setup and grant users access to your company’s SHIPPING-KPI account to the extent such users are employed or hired by you and act on behalf of you, and thus participate in using the SERVICE.
3. The REPORTS may only be used for the specific PURPOSE defined under Clause 2. REPORTS created by you may not be reproduced fully or in part for any other purpose than defined under PURPOSE.

Clause 4 - Payments

1. You will be charged for the use of the SHIPPING-KPI in accordance with the latest pricelist published on the BIMCO website (www.bimco.org). SHIPPING-KPI is available for both members and non-members of BIMCO as detailed in the pricelist. The subscription version requires the payment of a yearly subscription fee which is payable on the commencement of the SHIPPING-KPI agreement (including the TERMS) and thereafter every year on the anniversary date of the commencement of the subscription. The BIMCO member version of SHIPPING-KPI requires no explicit subscription but rely on the prerequisite of active BIMCO membership. 
2. BIAS may from time to time amend the fees for using SHIPPING-KPI or parts thereof, but will notify users at least thirty (30) days’ in advance of any change.
3. Fees and any taxes charged shall be due and payable according to the price list or individual agreements with your company.
4. A subscription to SHIPPING-KPI expires automatically one (1) year from the date of commencement, unless renewed.
5. A BIMCO member version of SHIPPING-KPI expires automatically if your company is no longer a member of BIMCO.

Clause 5 - Data Storage

1. YOUR DATA and your PERSONAL DATA is 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.
2. 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 six (6) months, or which (ii) contains information that contravenes or violates criminal laws, mandatory provisions or public order, policy or customs.
3. Subject to the above, BIAS shall act only in accordance with documented instructions from you in relation to your stored data in the CRM and DATABASE systems, as you are data controller of such information. BIAS has taken appropriate 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 Danish or EU data protection laws by any unauthorised person. 
4. Subject to above BIAS shall act in accordance with the POLICY and by accepting the TERMS and 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).
5. After expiry or termination of your subscription, Your PERSONAL DATA in the DATABASE will be deactivated and after twelve (12) months deleted or anonymised. Your PERSONAL DATA in CRM will be kept for the duration of the data retention period described in the POLICY.
6. Twelve (12) months after expiry or termination of your subscription, YOUR DATA will be modified not to include direct ship identification data by removing ship IMO number and names for all records. Unless explicitly requested to be deleted by you, this modified version of YOUR DATA will be kept in the DATABASE to serve the PURPOSE.
7. We may analyse anonymised usage data to improve the system, evaluate data quality and generate periodic reports with the aim of providing you with a better service.

Clause 6 – 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 5.3
3. The following types of personal data (PERSONAL DATA) may be processed by BIAS for the purpose of allowing you to use SHIPPING-KPI:
1. CRM data: name, email, phone number and company details.
2. DATABASE data: name, email, job title, role and different kinds of logging information with traces of your DATABASE changes and events, such as date, time, IP address and client platform (for example, the operating system or the browser).
4. The personal data processed may concern the following categories of data subjects: employees, customers or other categories of data subjects that you add to SHIPPING-KPI.
5. BIAS shall only process personal data on behalf of you and only on documented instruction from you, unless BIAS is required to process the personal data to comply with European Union or Member State law to which BIAS is subject. In that case, BIAS will inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. 
6. Upon your written request, BIAS will contribute to, and permit you or any third party appointed by you (subject to reasonable and appropriate confidentiality undertakings), to audit BIAS’s data processing activities to enable you to verify and/or procure that BIAS and/or sub-processors are in compliance with their obligations under the data protection legislation. BIAS shall be entitled to charge you a reasonable fee for its assistance in relation to the conduct of any audits. Unless required by the data protection legislation or a data breach has occurred, no audits will be conducted more than once in any twelve (12) month period.
7. BIAS will ensure that the employees processing personal data on its behalf have committed themselves to the obligation of confidentiality regarding any personal data processed under the TERMS.  The obligation of confidentiality will continue after the termination of the SHIPPING-KPI agreement. 
8. BIAS shall notify the administrator of your SHIPPING-KPI account of a data subject under that account’s request to exercise his/her rights under the data protection legislation, forward the request to you and provide cooperation and assistance in relation to your obligation to respond to said request. 
9. BIAS shall provide all information necessary and assist, insofar possible, you in ensuring compliance with all applicable provisions under the data protection legislation, including but not limited to information needed for you to conduct a data protection impact assessment and assist you with respect to prior consultations with data protection authorities as required by you. BIAS shall immediately inform you if, in BIAS’ opinion, an instruction from you infringes the GDPR or other EU or applicable member state data protection provisions. 
10. BIAS may sub-contract its processing operations performed on behalf of you to a sub-processor upon (30) days’ written notice to you. Where BIAS sub-contracts its obligations, as described above, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on BIAS under clauses 6 and 5.3. Subject to clause 7, where the sub-processor fails to fulfill its data protection obligations under such written agreement, BIAS shall remain fully liable to you for the performance of the sub-processor’s obligations.
11. BIAS or any of its sub-processors may transfer personal data processed on behalf of you out of the EU/EEA upon thirty (30) days’ written notice to you, to the extent you do not object to the transfer. BIAS will comply with the data protection legislation and any requirements established by any data protection authority or other government authorities necessary for the granting of approval by such authorities for the transfer of personal data outside of the EU/EEA.
12. If the SHIPPING-KPI agreement, including the TERMS, is terminated, BIAS will at the choice of you, delete or return all personal data belonging to you, and delete existing copies, unless Union or Member State law requires storage of the personal data.

Clause 7 - 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 SHIPPING-KPI 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 and data obtained from using SHIPPING-KPI are correct or will be corrected. Any implied warranties are limited to ninety (90) days after entering into the SHIPPING-KPI agreement, including the TERMS.
2. As defined in the PURPOSE, YOUR DATA will be compared with COMPARATIVE DATA in the REPORTS. BIAS does not warrant the correctness and quality of YOUR DATA nor the COMPARATIVE DATA and cannot be held liable for any REPORT conclusions and any decisions made thereof.
3. Technical inaccuracies or typographical errors could occur using SHIPPING-KPI. BIAS may make changes to parts of SHIPPING-KPI, including the prices and descriptions of any products listed herein, at any time without notice. 
4. The use of the services provided by SHIPPING-KPI 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 SHIPPING-KPI. No advice or information, whether oral or written, obtained by you from BIAS or through or from SHIPPING-KPI creates any warranty not expressly stated in the TERMS.
5. Termination shall be your only remedy against BIAS for (i) any event where you for any reason are dissatisfied with (a) SHIPPING-KPI 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 SHIPPING-KPI parts; or (c) the amount and type of fees incurred by you or (ii) any event of default from BIAS.
6. BIAS makes no warranty for any minimum operation (up-time) period of SHIPPING-KPI. And any interruption of the services of SHIPPING-KPI whether due to maintenance, repair or other malfunction shall not entitle you to any refund. 
7. 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

Clause 9 - Copyright

1. The software and all intellectual property rights in and to the software that comprises SHIPPING-KPI 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. 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. No right, title or interest in any material found in SHIPPING-KPI is transferred to you as a result of the authority to use SHIPPING-KPI according to the TERMS. BIAS reserves complete title and full intellectual property rights in any REPORTS you print from SHIPPING-KPI. 
4. 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 SHIPPING-KPI agreement, including the TERMS.
5. You are not permitted to reverse engineer, decompile and/or disassemble SHIPPING-KPI or otherwise seek to obtain the source code of or to SHIPPING-KPI.

Clause 10 - Termination

1. BIAS may from time to time modify these TERMS but shall provide you with at least thirty (30) days’ notice of any change. Either party may terminate a subscription to SHIPPING-KPI with thirty (30) days’ prior written notice. If you terminate your subscription to SHIPPING-KPI you shall not be entitled to a refund on any remaining proportion of the subscription.
2. Notwithstanding 10.1 BIAS may terminate and/or suspend, without notice, your subscription to SHIPPING-KPI 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 SHIPPING-KPI in accordance with this Clause 10.2 you shall not be entitled to a refund on any remaining proportion of the subscription.

Clause 11 - 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 (1) 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 SHIPPING-KPI shall be subject to exclusive jurisdiction of the Danish Courts competent as principal jurisdiction for BIAS.