These Terms of Service constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “Client”) and Burmester & Vogel Ltd., a Delaware corporation (“Company“, “B&V”, “we”, “us”, or “our”) concerning your access to and use of the website https://www.burmester-vogel.com as well as any applications, APIs, or any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms of Service and our Privacy Policy https://www.burmester-vogel.com/privacy-policy, which is incorporated by reference into these Terms. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE OR SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country.
Please refer to our Privacy Policy https://www.burmester-vogel.com/privacy-policy for information on how we collect, use, transfer, retain and delete Personal Information. The Privacy Policy is incorporated by reference into these Terms of Service.
Scope of Services: B&V provides companies engaged in or facilitating the sale, purchase, or transportation of bulk commodities with solutions for commodity trade execution and voyage management, including but not limited to calculating, analyzing and managing freight and demurrage costs, an electronic platform for workflow management and document digitization and AI services, (collectively, the “Services”).
B&V will provide Client access to the Services pursuant to a signed or paid Invoice for the Services, by request via email or by telephone (“Invoice”), and will allow permitted users with Administrator, Editor or Viewer access rights to the Services (the “End Users”) to access the Services. Client authorizes B&V to act on any instructions reasonably believed by B&V to be authentic communications from the Client and/or authorized End Users. It is the Client’s responsibility to keep all user IDs, passwords, entry codes and other means of access to the Services within the possession or control of the Client’s End Users, employees and agents, confidential and secure from unauthorized use. Client shall be responsible for monitoring the use of the Services.
Payments: Client agrees to pay B&V fees, any applicable taxes, and other charges according to each Invoice. All payment obligations are non-cancelable unless otherwise stated, and fees paid are non-refundable unless otherwise stated. All fees and charges are payable to B&V upon delivery of the Services. After payment is 30 days overdue any unpaid balance will accrue monthly interest of 1.5%.
Term & Termination: The Engagement shall commence on the license term start date of the Invoice and continue in effect until terminated (i) by written consent of the parties, or (ii) on the license term end date. Upon termination of the Engagement, B&V’s Services shall cease and Client will discontinue (and will cause each End User to discontinue) use of any Services provided hereunder.
Ownership of Services: B&V owns and shall retain all right, title, and interest in and to the Services, all components thereof, including without limitation all related applications, user interface designs, processes, software and source code, and any and all future enhancements or modifications thereto or derivative works therefrom, howsoever made, and all intellectual property rights therein. B&V grants Client a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable license to use the Services pursuant to B&V’s intellectual property rights during the term of this Agreement and applicable License Agreement, Service Agreement or Invoice.
End User Files: “End User Files” include but are not limited to trade documents and voyage charter documents (e.g. notice of readiness, statement of facts, laytime statements, charter party, etc.) and any additional files uploaded to the Services by Client and/or the End Users in connection with the Engagement. End User Files shall remain Client’s property (or that of their respective third-party owners, if any) and shall not be considered part of the Services. B&V shall not be responsible for the content, accuracy, legality or completeness of End User Files.
B&V acknowledges that, as between B&V and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to its End User Files. Client hereby grants to B&V a non-exclusive, royalty-free, non-transferable, non-sublicensable license during the Term to reproduce, distribute, and otherwise use the End User Files to further train and improve the B&V systems, processes, models and predictions and perform all acts with respect to the End User Files as necessary for B&V to provide the Services to Client and to other clients. Such license to B&V includes the right to use data from the End User Files in the B&V system as part of aggregated statistics, including in combination with third-party data, in order to provide analytics to Client and to third parties; provided, such data has been de-identified by B&V prior to any such aggregation.
Client agrees that End User files and Client personal information as defined by applicable laws and regulations may be used by B&V to train its AI algorithms and develop AI tools, applications and platforms. B&V may use Client’s data to create derivative works, which may include: (i) benchmark demurrage price indices for a particular vessel type, size, trade lane (origin/destination) or trade, (ii) analytics on average port stays and costs by cargo/commodity, vessel type, port, counterparty and time of year; (iii) comparison of Client’s demurrage cost or port delay compared to its peer group; and (iv) create a rating system that scores a Client’s (or their counterparty’s) accuracy in calculating demurrage relative to B&V’s predicted demurrage, or a rating score that shows the percentage of demurrage recovered compared to the initial amount invoiced. All right, title and interest in such derivative works shall be and remain owned by B&V.
Relationship of the Parties: Both parties are independent contractors. Nothing in this Agreement shall be construed as creating an employment, joint venture, partnership, or agency relationship between the Parties.
Confidentiality: “Confidential Information” means any and all information disclosed by or at the direction of either party (“disclosing party”) to this Agreement to the other party (“receiving party”) in connection with the provision or use of Services under this Agreement, including, without limitation, information relating to the business, operations, technology, properties, employees and clients of the disclosing party. Without limiting the foregoing, all information, processes, know-how, designs and technology relating to the Services as well as the terms of this Agreement shall be deemed B&V’s Confidential Information, and all End User Files shall be treated as Client’s Confidential Information.
Confidential Information shall not include information that (1) was or enters into the public domain before disclosure; (2) was lawfully received by receiving party without confidentiality restrictions; (3) was known to receiving party prior to receipt from disclosing party; or (4) was independently developed by receiving party without breach of this Agreement.
The receiving party shall not disclose any of the Confidential Information, except as provided in this Agreement or to perform the Services or as required by law and shall hold and maintain the Confidential Information in confidence pursuant to the terms of this Agreement. The receiving party may disclose the disclosing party's Confidential Information to the receiving party’s Representatives or Authorized Users. “Authorized Users” are individuals that have been authorized to receive access to Confidential Information by the disclosing party either in writing or through the Services. For purposes of this Agreement, the term "Representative" shall include the receiving party's or the disclosing party’s affiliates and its and their respective directors, officers, employees, agents, subcontractors, members, accountants, consultants and financial, legal, and other advisors.
At the request and option of the disclosing party, or in the event of termination of this Agreement (or any part thereof), the receiving party agrees to promptly: (i) return to the disclosing party the Confidential Information; or (ii) destroy or permanently erase the Confidential Information and, if requested by the disclosing party, acknowledge in writing that all such Confidential Information has been destroyed or permanently erased. Notwithstanding the foregoing, each party may retain copies of the Confidential Information solely for archival purposes or to the extent required to comply with applicable legal and regulatory requirements, provided however that such information will remain subject to the terms and conditions of the Agreement.
Privacy and data protection: B&V and Client agree to comply with all applicable privacy and data protection laws.
Representations & Warranties: B&V warrants the Services will be provided in a manner that (i) is consistent with generally prevailing industry standards and (ii) is reasonably designed for the secure maintenance of the Services and distribution of End User Files. B&V warrants (to the best of its knowledge after implementing reasonable measures) that the Services do not contain any third-party computer code intentionally designed to disrupt, disable, or harm in any manner the operation of the Services. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS, OR STATEMENTS MADE PRIOR TO THIS AGREEMENT.
Client represents and warrants to B&V that the content of the End User Files and the disclosure of End User Files to B&V and to End Users by or at Client’s direction shall not violate any applicable law, regulation or third-party rights in any material respect. Each party executing this Agreement represents to the other that it is authorized and has all rights necessary to enter into and be bound under this Agreement, and no law, regulation, court order or third-party Engagement prohibits its performance of this Agreement.
Indemnification: (a) B&V will indemnify, defend and hold harmless Client from and against any and all damages, liabilities, losses, costs and expenses (including reasonable attorney costs) (collectively, “Losses”) resulting from any third-party claim, suit, action, investigation or proceeding (each, an “Action”) brought against Client based on: (i) the infringement by B&V of any third-party trade secret, copyright, U.S.- or UK-issued patent or registered trademark or (ii) the breach by B&V of any obligations, representations or warranties in this Agreement, including Confidential Information, except, in any case, to the extent such Action is based on Client’s bad faith, fraud, gross negligence or willful misconduct or material breach of this Agreement, and (b) Client will indemnify, defend and hold harmless B&V from and against any and all Losses resulting from any third-party Action brought against B&V based on: (i) the infringement by Client or any End User of any third-party trade secret, copyright, U.S.- or UK-issued patent or registered trademark or (ii) the breach by Client of any obligations, representations or warranties in this Agreement, including without limitation with respect to Confidential Information, violation of the Privacy and Data Protection provisions of these Terms and violation of Applicable Law by Client, except, in any case, to the extent such Action is based on B&V’s bad faith, fraud, gross negligence or willful misconduct or material breach of this Agreement.
Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL B&V BE LIABLE TO CLIENT FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICES PROVIDED TO CLIENT, EVEN IF B&V HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT THE CLAIM IS BASED IN CONTRACT, TORT, DUTY, OR OTHERWISE. B&V’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR DAMAGES, INDEMNITIES, COSTS, AND EXPENSES, REGARDLESS OF CAUSE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO B&V BY CLIENT DURING THE TWELVE MONTHS PRIOR TO THE NOTICE OF CLAIM DELIVERED TO B&V.
Uptime: B&V shall provide the Services with a minimum of 99.9% operational time twenty-four (24) hours a day, seven (7) days a week as measured over each calendar year. This excludes any pre-scheduled maintenance windows.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, pandemic, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control (together “Force Majeure Events”) and the performing party provides notice of same within forty-eight (48) hours of its discovery of a Force Majeure Event
Export Controls: Client shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Client shall not export, or allow the export or re-export of the Services in violation of any such restrictions, laws, or regulations. By using B&V’s Services, Client agrees to the foregoing and represents and warrants that Client is not located in, under the control of, or a national or resident of any restricted country.
Entire Agreement: This Agreement is the entire agreement between B&V and Client. Any modification or amendment to this Agreement shall be in writing and signed by both parties.
Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without B&V’s’ express written consent. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Waiver: The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of or consent to any subsequent breach.
Notices: Notices under this Agreement shall be in writing, and will be deemed given: (1) when delivered personally; (2) within three (3) business days after being sent by a nationally-recognized courier; (3) within 24 hours after being sent by electronic mail.
Severability: The unenforceability of any portion, provision, or sub-provision of this Agreement will not affect the enforceability of any other portion, provision, or sub-provision of this Agreement and the remaining provisions will be considered binding between the parties.
Applicable Law: This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts without regard to principles of conflicts of laws.
Resolution of Disputes: If a dispute arises under this Agreement, the parties agree that the aggrieved party shall submit a written Notice of Dispute to the other party specifying the nature of the dispute and the requested relief. The parties agree that before filing any Notice of Claim in arbitration they shall first try to resolve the dispute with the help of a mutually agreed-upon mediator in Suffolk County, Boston, Massachusetts. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If they cannot agree upon a mutually satisfactory solution through mediation, the parties agree to submit the dispute to a mutually agreed-upon arbitrator in Suffolk County, Boston, Massachusetts. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Any dispute regarding arbitrability, confirmation or an application for confirmation of an award in arbitration shall be brought in the state or federal court within the County of Suffolk in the Commonwealth of Massachusetts. The Costs of arbitration, including attorney fees, will be allocated by the arbitrator.
