Terms & Conditions

LICENSE AGREEMENT

This license agreement (the “Agreement”) is entered into on the date of the last signature in the order form (the “Effective Date”), by and between Miros Mocean AS, organization number 924 817 534 (“Miros Mocean”) and the customer listed in the order form (“Customer”).

This Agreement includes and incorporates the order form and the terms and conditions below. The terms and conditions contain, among other things, warranty disclaimers, liability limitations and use limitations. These terms and conditions were last updated on 4th March 2021.

1. Description of the Service

Miros Mocean offers a proprietary vessel performance optimisation platform that integrates real-time in-service vessel data (fuel consumption and power) with local wave and weather parameters. The application enables vessel owners, operators and charterers to optimize a vessels’ speed and route, verifying the CO2 footprint for each voyage, providing hull and propeller cleaning decision support, preparing auto logged reports etc. (the “Services”). The scope of the Services ordered by Customer is listed in the order form.

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. MIROS MOCEAN DOES NOT WARRANT THAT THE SERVICES WILL FULFIL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR THAT THEY ARE PROVIDED WITHOUT FAULTS.

Through the use of the Services, Customer is given access to certain data collected from sensors and/or other data from third party providers, such as weather data or tide tables (the “Data”). Miros Mocean is responsible for ensuring that the Data are displayed and represented as they are collected without distortion but gives no warranties and makes no guarantee in respect of the accuracy, correctness or fitness of the Data for any of Customer’s particular purposes or needs.

Subject to the terms of this Agreement, Miros Mocean will use commercially reasonable efforts to provide Customer with access to and use of the Services.

2. Scope of Hardware Delivery

In order for the Services to effectively function, Miros Mocean provides certain hardware specified in the order form (the “Hardware”). Such Hardware is provided with a limited warranty, as per Clause 10 below.

The Hardware shall be delivered on the delivery date and in the quantity specified in the order form.

If installation, training or other services are to be provided by Miros Mocean, this must be stated in the order form.

3. Delivery Terms for Hardware

All Hardware items are delivered Ex Works (Incoterms 2020).

4. License grant and restrictions

4.1 Access right to the Services

The number of Vessel Licenses ordered by Customer is set out in the order form. Each Vessel License grants Customer a right to use the Services for one (1) vessel.

The Customer is granted a non-exclusive, non-sublicensable, non-transferable and time-limited access right to the Services, strictly limited to the user interface made intentionally available by Miros Mocean at any given time. The license is time-limited to the duration of this Agreement.

Customer may authorise Customer’s own employees, agents, representatives or partners, collectively referred to as “Authorised Users”, to access the Services. Access to Authorised Users is conditional upon such Authorised User’s prior acceptance of the End User License Agreement, included in Appendix A. Customer may not use, or authorize to use, the Services by means of time sharing, remote computing services, networking, batch processing, service bureau or time-sharing arrangement.

The license granted in this clause does not include the right to access the source code or object code, or otherwise access parts of the Services which are not intentionally made available by Miros Mocean.

The license does not include the right to modify, reproduce, reverse-engineer, decompile, disassemble, copy or imitate the Services.

The license shall be deemed as activated when Customer has been provided with log-in details that enable access to use the Services (the “License Activation Date”). The License Activation Date shall occur no later than three (3) months after the Hardware delivery date.

4.2 Access Right to Data

Miros Mocean owns and retains all right, title, and interest, including all intellectual property rights, in and to the Data, as defined in Clause 1 hereto.

Customer is granted an exclusive license to use the Data made available to it through the Services. Such use shall be limited to Customer’s ordinary business activities, and Customer shall not share, distribute or make the Data available to any third parties (except any Authorised Users), unless such third party is performing work for or in collaboration with Customer, where the Data is required.

The Data shall remain available to Customer through the Services for twelve (12) months.

5. Customer Data

Customer is responsible for obtaining any required permissions and authorisations to use and share any data provided by Customer to Miros Mocean through the use of the Services (“Customer Data”). Customer owns and retains all right, title, and interest, including all intellectual property rights, in and to Customer Data.

Miros Mocean is granted a non-exclusive access right to the Customer Data in order to provide the Services. The Customer Data may be used to provide Customer and/or Authorised Users the Services. Miros Mocean may also convert the Customer Data to anonymous data which may be used to improve and develop the Services or new products and services offered by Miros Mocean in the future. All Customer Data (excluding anonymous data) will be deleted upon termination of this Agreement.

6. Customer Restrictions and Responsibilities

Customer represents, covenants, and warrants that Customer will use the Services in compliance with this Agreement and all applicable laws and regulations, and in a way that will not harm the Services or anyone else’s use of them.

Customer is responsible for ensuring that both the Services and the Hardware are used in accordance with any instructions, user manuals or similar provided by Miros Mocean.

Customer shall be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and Authorised User passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

Customer shall notify Miros Mocean immediately upon becoming aware of any violations of the End User License Agreement.

Violation of the End User License Agreement included in Appendix A may result in suspension or permanent deletion of the associated End User accounts. Repeated violations or gross violations shall be deemed as a material breach of this Agreement, which provides Miros Mocean the right to early termination of the Agreement in line with Clause 8 hereto.

7. Pricing and Payment Terms

7.1 Prices and Invoicing

The price for the Services (the “Service Fee”) and Hardware ordered by Customer, is set out in the order form.

Payment for any Hardware shall be made within thirty (30) days from the delivery date.

Unless otherwise agreed in the order form, Miros Mocean shall invoice the Service Fee in advance for each twelve-month period.

Customer shall start paying the Service Fee as of the License Activation Date, as defined in Clause 4.1 above. The first invoice for the Service Fee shall be issued no later than the License Activation Date. Payment shall be made within thirty (30) days.

Late payment shall be subject to interest in accordance with the Norwegian Act relating to Interest on Overdue Payments, etc. (NO: Forsinkelsesrenteloven).

7.2 Changes to Services or Vessel Licenses

If Customer requires the inclusion of new Services or to increase the number of Vessel Licenses, the Service Fee shall change accordingly effective as of the day Miros Mocean notifies Customer that the new Services or Vessel Licenses are available for Customer to access and use.

Any reduction to the scope of the Services or the number of Vessel Licenses, shall be considered a termination, cf. Clause 8 below.

7.3 Price Adjustments

The prices shall not be subject to escalation during the first twelve (12) months after the Effective Date. After such period, the prices may be subject to annual escalation in accordance with the Norwegian Consumer Price Index effective from January of the year the Agreement was entered into.

Prices will be escalated with effect from January in the first year following the date falling twelve (12) months after the Effective Date. Such escalation may also consider any change in the price for the services provided by Miros Mocean’s subcontractors.

Notwithstanding the above, Miros Mocean may adjust the price in the event Miros Mocean’s subcontractors increase the price of their services with 15% or more. In such event, Miros Mocean shall give Customer no less than three (3) months written notice prior to the escalation taking effect, and Customer may terminate the Agreement provided Miros Mocean is notified in writing no less than two (2) months prior to the escalated price coming into effect.

7.4 Suspension Due to Non-Payment

In the event Customer has not paid an undisputed amount within the time specified in Clause 7.1 above, Miros Mocean shall notify Customer of such non-payment. If payment is not received by Miros Mocean within sixty (60) days after such notification was issued, Miros Mocean may, without further notification, suspend Customer’s, including all Authorised Users’, access to the Services. Customer and Authorised Users will regain access to the Services upon payment of the undisputed amount, including accrued interest, and any further amounts accrued after the notice was issued. Such non-payment shall also be considered a material breach of the Agreement, entitling Miros Mocean to terminate in accordance with Clause 8 below.

8. Term and Termination

Unless a different term is agreed in the order form, the initial term of this Agreement shall be twelve (12) months calculated from the Activation date. The Agreement shall thereafter be automatically renewed for twelve (12) months at a time, unless terminated by either party in writing at least three (3) months prior to the expiry of the initial term or then-current renewal term.

During the term, the Agreement may be terminated by either party if the other party is in material breach of its obligations hereunder, and such breach is not rectified within a reasonable time after the breaching party was notified by the other party of its breach in writing.

Customer shall pay the Service Fee up to and including the last day on which the Services are provided.

In the event that an agreement between Miros Mocean and any of its subcontractors is terminated, Miros Mocean shall use its best endeavours to find an alternative subcontractor on similar terms and at no cost for Customer. If it is not possible to find such alternative subcontractor within a reasonable time and on similar terms as the terminated agreement, Miros Mocean may terminate this Agreement. The date of termination will be the same as the termination of the agreement between Miros Mocean and its subcontractor.

9. Service Level

9.1 Availability

The Services shall be available to Customer and Authorised Users 95% of the time. The Services are considered available when they function as intended without material defects or delays and are available to Customer and Authorised Users connected to the internet.

The availability shall be calculated in periods of thirty (30) calendar days (the “Calculation Period”). The availability in every Calculation Period shall be based on the following formula:

Availability = (1-(D-S)/O) *100

D: Downtime in minutes, calculated from the time Customer notifies Miros Mocean that the Services are not available.

S: Scheduled downtime, or downtime due to Customer’s fault, in minutes.

O: Operating time in minutes.

Downtime caused by planned downtime in services provided by Microsoft, third-party software or hardware used by Customer or Authorised Users, or other matters beyond Miros Mocean’s control, shall not be included when calculating the availability.

Miros Mocean shall ensure that Customer is notified no later than twenty-four (24) hours prior to any Scheduled downtime due to maintenance, updates or improvements of the Services.

If Miros Mocean fails to meet the agreed availability level, Customer shall be entitled to a standardised compensation as stipulated below:

The above compensation shall be Customer’s sole remedy for failure to meet the agreed availability level.

9.2 Support

Miros Mocean shall provide a support service that shall be available between 08:00 and 17:00 Central European Time, Monday through Friday. In addition, Miros Mocean shall provide an immediate response via its e-mail ticket queuing system 24/7.

Miros Mocean shall use its commercially reasonable efforts to find a solution to Customer’s issue within a reasonable response time.

10. Limited Warranty for Hardware

Miros Mocean warrants that the Hardware is free from defects in workmanship and materials at the time of shipment.

Any claims made under this limited warranty must be reported to Miros Mocean in writing within one (1) year from the delivery date of the Hardware.

The warranty does not cover defects or damage caused by circumstances for which Customer is responsible, including negligent use or use in violation of user instructions.

Further, the warranty does not apply if, and Miros Mocean shall have no liability for Hardware returned by Customer as to which Miros Mocean’s examination discovers that:

• the Hardware has been exposed to unusual or excessive environmental, mechanical, electrical or thermal stress during the course of Customer’s storage, installation or handling of any kind; or
• Hardware malfunction is the result of misuse, abuse, improper installation or application, alteration, accident, or negligence in use, storage, transportation or handling or if the original identification markings on the Hardware have been removed, defaced or altered.

All warranty claims are subject to verification by Miros Mocean.

THE LIABILITY OF MIROS MOCEAN HEREUNDER IS SOLELY AND EXCLUSIVELY LIMITED TO REPLACEMENT OR REPAIR, AT MIROS MOCEAN’S SOLE OPTION.

MIROS MOCEAN SHALL NOT ENTERTAIN ANY WARRANTY CLAIM UNLESS:

• MIROS MOCEAN IS NOTIFIED OF A DEFECT IN WRITING BY CUSTOMER PRIOR TO THE EXPIRATION OF THE WARRANTY PERIOD; AND
• THE DEFECTIVE HARDWARE ITEM IS RETURNED TO MIROS MOCEAN AT CUSTOMER’S COSTS; AND
• MIROS MOCEAN’S EXAMINATION OF THE RETURNED HARDWARE ITEM DISCLOSES TO MIROS MOCEAN’S REASONABLE SATISFACTION THAT SUCH DEFECTS HAVE NOT BEEN CAUSED BY IMPROPER HANDLING, STORAGE, TESTING, INSTALLATION, MISUSE, NEGLECT, REPAIR, ALTERATION OR ACCIDENT.

EXCEPT FOR THE WARRANTY SPECIFICALLY INCLUDED HEREIN, MIROS MOCEAN MAKES NO OTHER WARRANTIES EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

11. Third-Party Hardware and Software – Disclaimer

MIROS MOCEAN SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR HARDWARE AND/OR SOFTWARE SUPPLIED BY A THIRD PARTY, EVEN IF SUCH HARDWARE OR SOFTWARE IS ESSENTIAL FOR THE SERVICES TO EFFECTIVELY FUNCTION. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY MIROS MOCEAN AS TO THE FITNESS OF THE THIRD-PARTY HARDWARE OR SOFTWARE FOR CUSTOMER’S INTENDED PURPOSE.

12. Indemnity – Limitation of Liability

12.1 Definitions

For the purpose of this Clause 12, the following definitions shall apply:

Customer Group means Customer, its co-venturers, co-operating partners and Authorised Users, their affiliated companies, Customer’s contractors and subcontractors, and the employees, agents, and representatives of the aforementioned corporate entities and others whose services are used by Customer.

Miros Mocean Group means Miros Mocean, its affiliated companies, contractors and subcontractors participating in the delivery of the Services, and the employees, agents, and representatives of the aforementioned corporate entities.

Third Party means anybody who is not part of Customer Group or Miros Mocean Group.

12.2 Miros Mocean Indemnification

Miros Mocean shall indemnify Customer Group from and against any claim concerning:

• personal injury to or loss of life of any employee of Miros Group; or
• loss of or damage to any property of Miros Group,

which might arise in connection with the Agreement or be caused by the Services. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of Customer Group.

12.3 Customer Indemnification

Customer shall indemnify Miros Mocean Group from and against any claim concerning:

• personal injury to or loss of life of any employee of Customer Group; or
• loss of or damage to any property of Customer Group,

which might arise in connection with the Agreement or be caused by the Services. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of Miros Mocean Group.

12.4 Third Party Claims

Miros Mocean agrees to indemnify, defend and hold Customer Group harmless from and against any claims made from a Third Party that the Services infringe said Third Party’s intellectual property rights. Miros Mocean’s obligation shall not apply to claims or awards based on: (i) Customer Data; (ii) Customer’s use of the Services after having received notification to stop due to a third-party claim; or (iii) other circumstances that Customer is responsible for.

Customer agrees to indemnify, defend and hold Miros Mocean harmless from and against any claims from a Third Party for damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) arising from Customer’s use of Services, the Data or the performance of the Services.

The parties shall notify each other without undue delay of any claims under this clause.

The responsible party shall handle and cover all costs associated with such claim, provided the other party has given the responsible party control over the case. The other party shall, in return for reasonable remuneration, assist the responsible party in the defence of such claim. Disputes between the parties relating to liability for infringement of a Third Party’s intellectual property rights shall be resolved in accordance with Clause 19 below.

12.5 Total Liability Cap

Notwithstanding any other provision in the Agreement to the contrary, the maximum cumulative liability of Miros Mocean to the Customer Group for all delays, losses, damages, liabilities and obligations whatsoever and howsoever arising (whether under the Agreement or otherwise), regardless of the cause or reason therefore and regardless of Miros Mocean Group’s negligence, which are suffered or incurred by the Customer Group and which are directly or indirectly connected with the Agreement shall be limited to the equivalent of twelve (12) months’ payment for the Services.

12.6 Indirect and Consequential Losses

Notwithstanding any other provision in the Agreement to the contrary, neither party shall be liable to the other party, by way of indemnity or by reason of any breach of contract or in tort (including negligence), or for breach of statutory duty or otherwise, for loss of use (partial or total); loss of production; loss of profit; loss of contracts; loss of reputation; loss of revenues; loss caused by pollution; vessel costs or for any special, indirect or consequential loss or damage whatsoever and whether incurred directly or indirectly which may be suffered by the other party’s Group in connection with the Agreement.

Each party shall indemnify, defend and hold harmless the other party from all such losses or damages mentioned above which may be suffered by the party Group.

13. Intellectual Property Rights

Miros Mocean has either secured the rights or ownership to all Intellectual Property Rights and Know-How related to the Services, including, but not limited to rights and ownership to algorithms, source code, object code and accompanying documentation, user interface design, graphics, illustrations, drawings, images, sound, videos, concepts, techniques and specifications.

In addition, Miros Mocean has secured either rights or ownership to the trademark(s) and any other trademarks used to market the Services and all domain names where the Services are hosted.

“Intellectual Property Rights” include, but are not limited to patent rights, design rights, and copyrights.

“Know-How” includes, but is not limited to all industrial, technical, marketing and commercial information and techniques in any form, and all designs and artistic creations, regardless of whether it is patentable, registered as Intellectual Property Rights or protected as trade secrets.

This Agreement does entail any transfer of any Intellectual Property Rights, rights to Know-How or any other rights to the Services or any related database, software and/or applications, unless otherwise specified herein.

14. Personal Data Protection

During the term of the Agreement, a party may process personal data concerning the other party’s representatives, employees or other parties performing work for that party, for the purpose of managing the contractual relationship between the parties and the performance of the party’s obligations under this Agreement. In relation to such processing, each party shall act as a data controller as defined in Regulation (EU) 2016/679 (General Data Protection Regulation – “GDPR”) and shall comply with its obligations pursuant to the GDPR and any other applicable data protection laws and regulations.

15. Confidentiality

For the purposes of this Agreement, “Confidential Information” means any information, whether or not developed by a party, including but not limited to pre-existing or new information which relates to all ideas, designs, methods, discoveries, improvements, products, software, trade secrets, product data and specifications, proprietary rights, business affairs, product developments, customer information or employee information, techniques, models, inventions, data, databases, proprietary code, know-how, pricing terms, business forecast, sales and marketing plans and reports provided to either party under this Agreement.

During the term of the Agreement and two years thereafter, each party will keep and maintain the other party’s Confidential Information in the strictest of confidence and will not otherwise make the other party’s Confidential Information available in any form, to any third party, or use the other party’s Confidential Information for any purpose other than the performance of its obligations in the Agreement.

Each party shall be responsible for ensuring that their respective officers, agents and employees do not disclose, use or distribute the other party’s Confidential Information in violation of the terms and conditions of this Agreement. Each party will make commercially reasonable efforts to protect the other party’s Confidential Information.

16. Changes to the Terms and Conditions of This Agreement

Occasionally Miros Mocean may make changes to the terms of conditions of this Agreement.

In case of material changes, Miros Mocean shall give Customer no less than three (3) months written notice prior to such change taking effect, and Customer may terminate the Agreement provided Miros Mocean is notified in writing no less than two (2) months prior to the change coming into effect.

17. Assignment

This Agreement may not be assigned or otherwise transferred to others without the other party’s prior written consent. Such consent shall not be unreasonably withheld. Consent is not required if the Agreement is transferred in its entirety by Miros Mocean as a result of Miros Mocean merging, demerging, otherwise transferring operations or reorganizing.

18. General provisions

18.1 Binding Nature

This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.

18.2 Insolvency

In the event that either party becomes insolvent or enters into insolvency proceedings, the other party is entitled to terminate the Agreement with immediate effect.

If Miros Mocean becomes insolvent or enters into debt settlement proceedings or is declared bankrupt, and to the extent this does not interfere with the bankruptcy estate’s right to assume Miros Mocean’s position in the Agreement, Customer shall have the right to recover, access and obtain a copy of the Data stored in the Services for the past 12 months.

18.3 Force Majeure

If circumstances beyond the parties’ control, which is classified as force majeure pursuant to Norwegian law, significantly complicate the implementation of the agreement, the parties’ obligations are suspended to the extent the circumstance is relevant and for as long as the circumstance lasts.

If force majeure shall be invoked, the afflicted party must notify the other party. The duty to notify also applies upon the end of the force majeure.

During force majeure, the parties have a mutual duty to inform of circumstances that may be of significance to the other party. The information must be given within a reasonable time.

Each of the parties may terminate the agreement with thirty (30) days’ notice if force majeure makes it especially burdensome to uphold the agreement. If the agreement is terminated as a result of force majeure, each of the parties shall carry their own costs related to the termination.

19. Disputes Concerning the Agreement

All disputes arising out of or in connection with this Agreement shall be finally settled under the laws of Norway.

The parties shall seek to resolve any disputes amicably through negotiations. If such negotiations fail, each of the involved parties may initiate legal proceedings before ordinary courts with Asker and Bærum District Court (Norway) as the exclusive legal venue.

The scope of the competent courts pursuant to the ordinary rules on provisional security is not limited by these provisions.

APPENDIX A

Customer is responsible for any unauthorized use of the Services by its own Authorised Users. All Authorised Users must accept the following terms and conditions prior to accessing the Services.

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END USER LICENSE AGREEMENT

Last revision: 4th March 2021

Your account is personal and is only meant for you. You may not share your log in details with third parties, nor register other people’s names, addresses or other contact information to your personal profile. The name, e-mail address and phone number that you submit to your personal profile shall be your own. You are responsible for ensuring that your information is correct and up to date. Your password and log-in detailed shall be stored in a safe location.

We will process personal data about you in connection with your use of the Services. You are welcome to study our privacy policy in greater detail here.

Miros Mocean is not responsible for any content that you upload to the Services. You or your employer are responsible and fully liable for all the content shared through the Services.

Miros Mocean has either secured the rights or owns all intellectual property rights related to the Services, including, but not limited to source code, object code and accompanying documentation, user interface design, graphics, illustrations, images, sounds, videos, concepts, data, know-how, trade secrets, the trademark and any other trademarks used to market the Services and all domain names where the Services are hosted.

You are granted a non-exclusive and non-transferrable access right to the Services. The access right is strictly limited to the user interface made intentionally available by us at any given time. The access rights granted to you do not include the right to access the source code or object code, or otherwise reproduce, copy, imitate the Services.

We may, upon prior notice, suspend or cancel your access to the Services in the event you breach these terms and conditions. You will be given written notice by us prior to any suspension or deletion of your account.

You may terminate this agreement at any time by cancelling and deleting your user account. Upon termination of this agreement, you lose any rights granted to you under this agreement.

This End User License Agreement may (“EULA”) be updated from time to time. You will be notified of any changes to the terms and conditions contained herein, with a 30 calendar days’ time limit to accept the updated EULA. We reserve the right to suspend or cancel your access to the Services if you do not accept the updated EULA within the 30-calendar day time limit.