PERFORM Terms & Conditions
Last updated 1 August 2018
The following terms and conditions constitute an agreement (the "Agreement") between you the customer ("Customer") and Klaveness Digital AS, and its affiliates (“Klaveness”). This Agreement governs the relationship between Customer and Klaveness in respect of Customer's and the Users' (as defined below) use of the Services (as defined below). By subscribing to and by using our Services, the Customer accepts this Agreement in full. If the Customer disagrees with this Agreement or any part of this Agreement, the Customer must not subscribe or use our Services.
“Services” shall mean the website https://perform.klaveness.com including all material on the website as well as all services made available by Klaveness through the website https://perform.klaveness.com.
"User" shall mean anyone being authorized by the Customer to use the Services made available to the Customer under the Agreement. The Customer is responsible for the User being compliant with the conditions of the Agreement and for ensuring that the relevant conditions of this Agreement are known by the User.
1. Customer's Klaveness Account(s)
Klaveness Account(s) are needed in order to use our Services. To protect Customer's Klaveness Accounts, keep passwords and other login details confidential. Klaveness will not be liable to the Customer in respect of any loss arising from Customer's failure to keep these details confidential. The Customer is responsible for the activity on or through a Klaveness Account.
2. License to use the Services
Subject to the terms and conditions set out in this Agreement and the Payment Terms and subject to Customer's compliance with this Agreement, Klaveness hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the Services as provided by Klaveness in the manner permitted by this Agreement.
The term of Customer's licenses under this Agreement shall commence on the date that Customer subscribe to the Services and ends on the earlier date of either Customer's or Klaveness’ termination of this Agreement, cf. section 10 of this Agreement.
Klaveness retains all right, title and interest in and to the Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, and patents whether registered or not and all applications thereof. This Agreement does not grant Customer the right to use any branding or logos used in the Services. All rights not expressly granted to Customer herein are reserved by Klaveness.
Customer agrees not to:
a. reproduce, duplicate, copy or otherwise exploit the Services or any part thereof;
b. sell, rent or sub-license material from the Services unless explicitly allowed;
c. remove, obscure or modify any copyright, trademark or other proprietary rights notices contained on or within the Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material;
d. use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services;
e. use the Services in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
f. use the Services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software; or
g. conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our Services without Klaveness' express written consent.
The Services may include measures to control access to the Services, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Customer may not interfere with such access control measures or attempt to disable or circumvent such security features.
3. Information collection and use
The Services are based on and dependent on getting access to information regarding customer's vessels or vessels under management by customers, such as but not limited to position data, vessel speed, consumption data, design and year of construction, (the "Data") which must be shared by customers of the Services. The Data may be provided directly from the customers to Klaveness and/or via third party services.
By entering into this Agreement the Customer grants Klaveness the right to collect Data from third party services for use in the Services. Unless otherwise explicitly specified, the Customer is further obligated to regularly provide Data directly to Klaveness or via third party services, as specified from time to time.
The Customer is responsible for all Data being complete and correct, and is also responsible for having obtained any consents etc. necessary to legally share the Data with Klaveness.
If the Customer does not fulfill its obligation to share Data in accordance with this section, Klaveness may terminate this Agreement.
Klaveness may use the Data free of charge and without any time limit, as long as this is done on an anonymous basis ("Aggregated Data"). Klaveness is hereunder entitled to compile and analyse the Data to prepare reports, studies, analyses, statistics, and otherwise as part of the Services offered from time to time.
Klaveness shall have exclusive ownership rights to and the exclusive right to use such Aggregated Data for any purpose, including but not limited to, as part of its Service and towards other customers/ prospective customers. Klaveness may not distribute Data in a manner that is identiﬁable as the Customer's data without ﬁrst obtaining the prior written consent of Customer.
Klaveness may not disclose to third parties or use any Data except as set out in this section or as is reasonably necessary to perform its other rights and obligations under this Agreement (including disclosing Data as authorized by the Customer) or to comply with any legal, regulatory or similar requirements.
Upon termination of this Agreement, irrespective of the reason, Klaveness shall retain the right to use the Data/Aggregated Data as specified in this section. Upon termination of this Agreement Klaveness will further continue to collect Data from third party services regarding Customer's vessels unless Customer has actively chosen to stop sharing Data with Klaveness. Cf. also section 10.
The Customer accepts that Klaveness may provide the Customer with information about products and services that may be of interest to the Customer. Klaveness may contact the Customer by email, mail or telephone. The Customer may at any time contact Klaveness if the Customer no longer wishes to receive information, news or offers from Klaveness. Please see contact information below.
5. Modification, termination and temporary suspension of Services
Klaveness may add or remove functionalities or features, and may suspend or stop a Service altogether.
Klaveness is if necessary further entitled to temporarily suspend supplying the Services due to technical, operational or maintenance-related matters or in other special situations. Such temporary suspensions will not entitle the Customer to claim compensation or other reimbursement, and Klaveness will not be responsible for the inconvenience this might cause the Customer.
6. Amendments to the Agreement
Klaveness may modify this Agreement to, for example, reflect changes to the law or changes to our Services. Klaveness will send Customer an email as well as post a notice of modifications to the Agreement on https://perform.klaveness.com. Please check this page regularly to ensure you are familiar with the current version. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. Customer will be deemed to have accepted such changes by continuing to use the Services. If Customer does not agree to the modified terms for a Service, Customer should discontinue the use of the Services.
7. No warranties
To the maximum extent permitted by applicable law, the Services are provided to Customer “as is,” with faults, without warranty or guarantees of any kind, without performance assurances. Klaveness do not guarantee that the operation of the Services will be uninterrupted or error-free, or that the Services will interoperate or be compatible with any other services or that any errors in the Services will be corrected. Klaveness do not guarantee the accuracy or completeness of the Services or data provided on and via the Services, and Customer's use of the Services and any data provided by it is at Customer's sole risk.
Klaveness do not make, and hereby disclaim, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, accuracy of data, merchantability, satisfactory quality, fitness for a particular purpose and non-infringement of third party rights.
Customer is responsible for configuring Customer' information technology, computer programs and platform in order to access our Services. Customer should use Customer's own virus protection software which at least should be good industry standard.
8. Limitation of liability
In no event will Klaveness be liable for special, incidental or consequential damages resulting from access, use or malfunction of the Services, including but not limited to, damages to property, loss of goodwill, computer failure or malfunction and, to the extent permitted by law, damages for personal injuries, property damage, loss of data, lost profits or punitive damages from any causes of action arising out of or related to this Agreement.
This limitation of liability shall apply to the maximum extent permitted by law.
In no event shall Klaveness’ liability for damages (except as required by applicable law) exceed the actual price paid by Customer for use of the Services.
Customer agrees to indemnify, defend and hold Klaveness harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) Customer's acts and omissions to act in using the Services pursuant to the terms this Agreement; or (ii) Customer's breach of this Agreement.
This Agreement will continue to apply until terminated by either the Customer or Klaveness as set out below. Customer has the right to terminate this Agreement on thirty (30) days prior written notice to Klaveness.
Klaveness may at any time terminate this Agreement with immediate effect by notice in writing to the Customer if;
a. Customer has breached any provision of this Agreement and fails to remedy that breach within thirty (30) days of notification of such breach by Klaveness;
b. Klaveness is required by law to do so;
c. Klaveness decides to no longer provide the Services or parts of the Services.
Upon termination of this Agreement Customer shall promptly cease accessing and/or use the Services.
Upon termination of this Agreement, irrespective of the reason, Klaveness shall retain the right to use the Data/Aggregated Data as specified in section 3 of the Agreement.
11. Governing law and dispute resolution
This Agreement will be governed by the laws of Norway
The parties shall seek to solve amicably through negotiations any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof. If the parties fail to solve such dispute, controversy or claim by an amicable written agreement within fourteen days after such negotiations have been initiated by a party, such dispute, controversy or claim shall be settled by Norwegian courts with Oslo District Court as legal venue.
IF CUSTOMER HAS ANY QUESTIONS CONCERNING THIS AGREEMENT, CUSTOMER MAY CONTACT:
Klaveness Digital AS
Drammensveien 260, P.O.Box 182 Skøyen NO-0212 Oslo, Norway
Tel: 0047 22526311