Last Updated: 17.08.2020

These terms of use (the “Terms of Use”) apply to all agreements between Miros AS (organisation no. 935 450 365) (“Miros”) and the users of Miros Cloud (the “Users”).

Miros and the Users are hereinafter individually referred to as a “Party” and jointly as the “Parties”.

1. Introduction

Miros has developed a way of collecting and sharing real-time and historical sea state information through a digital platform called Miros Cloud (the “Platform” or “Miros Cloud”). Through the Platform, the Users may be given access to certain data collected from certain sensors as specified in the Form of Agreement (the “Data”), and/or other data from third-party providers, such as weather data or tide tables (“Other Data”). The scope of the Services is further described in the Form of Agreement (the “Services“).

The Platform will be available to the User as it is at all times, with such functions and qualities determined by Miros.

These Terms of Use regulate the Parties’ rights and obligations in relation to the Services.

2. Miros’ obligations

2.1 The Services

Subject to the terms and conditions of the Agreement and in consideration of timely payment of the agreed compensation by the User, Miros shall provide the Services in accordance with the requirements set out in the Agreement.

2.2 The Data

Miros is responsible for ensuring that the Platform displays and represents the Data 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 or the Other Data for the particular use or purposes.

2.3 Operation and maintenance of the Platform

Miros shall maintain the Platform and ensure that any required maintenance, updates or improvements to the software are implemented with minimum downtime for the User. Miros shall notify the User no later than 24 hours prior to the commencement of such work if it may cause downtime to the Platform. Responsibility for downtime of the Platform is regulated in Clause 7 below.

2.4 Support Line

Miros shall provide a support service that shall be available for the User between 08:00 and 17:00 Central European Time, Monday through Friday. In addition, Miros shall provide an immediate response via its e-mail ticket queuing system 24/7. Miros shall use its best efforts to find a solution to the User’s issue within a reasonable response time.

In the event the Parties have agreed a separate service level agreement for the Services, service levels, and support parameters shall be defined in such agreement.

3. Access to the Platform

The User shall only use the Platform as described in the Agreement and the User shall be responsible for having the necessary hardware and software required to access the Platform and use the Services.

Provided it is within the access level agreed in the Form of Agreement, the User may authorise its employees, agents, representatives or partners to access the Platform under the Agreement (“Authorised Users”).

The Platform shall only be used within the Users ordinary business activities, and all access shall be done through single sign-on using the User’s or, if applicable, Authorised Users’ Active Directory accounts. The login details shall be kept unavailable to any person not entitled to use the account in accordance with this Agreement. Alternative methods of user authentication must be discussed with Miros in the event Active Directory authentication is not possible.

The User shall ensure that all Authorised Users are familiar with the terms and conditions of the use of the Services. Miros reserves the right to suspend and/or terminate the Agreement upon any breach of the agreed terms and conditions.

The User is responsible and liable according to the terms of the Agreement for all use of the Platform through its own or its Authorised Users’ domain accounts, regardless of whether its employees or authorised persons using such accounts have acted within what could reasonably have been expected by them.

It is not permitted to use the Platform other than as described herein, and the User and Authorised Users shall not use the Platform, inter alia:

• to try gaining access to Other Data which the User has not purchased access to, or to any other type of data not offered by Miros for the Platform;
• to try circumventing technical restrictions related to the Data or the Other Data;
• to illegal or dishonest activities;
• to give access to the Platform to unauthorised third parties;
• to try to modify the Platform, try finding the source code to the Platform or create or derive works from the Platform;
• nor information and data gained under the Agreement to build a similar service or create a solution with similar functions and characteristics as the Platform;
• to access or use the Platform using automated processes or third-party programs, or to systematically scrape or index information using automated processes or third-party programs; and
• to remove or amend any notice or copyright or similar which is attached to the Platform.

Furthermore, the User and Authorised Users shall not actively prevent the normal communication between the Miros supplied sensors and systems at site and the Platform.

4. Right to use the Data and Other Data

4.1 The User’s right to use the Data and Other Data

The User is granted an exclusive right to use the real-time Data made available to it in the Platform. Such use shall be limited to the User’s ordinary business activities, and the User shall not share, distribute or make the Data available to any third parties (except any Authorised Users), unless specifically agreed between the Parties or for the purpose of such third party performing work for or in collaboration with the User, where the Data is required. Unless otherwise is agreed in the Form of Agreement, the Data shall be available to the User in the Platform for 12 months and all available User Data on file shall be available for download.

The User is responsible for having the required permissions and authorisations to use the Data and Other Data included in the scope of Services, and Miros shall not be responsible for such use.

4.2 Intellectual Property Rights

The User’s access to the Platform and the Data and Other Data does not extend beyond what is stipulated in the Agreement. The Agreement does not include any transfer of title, intellectual property rights or any other rights to the Platform or any related database, software and/or applications. All such rights to the Platform vest in Miros.

All intellectual property rights to the Data and Other Data shall vest in the owner of such data. Miros has no right to the Other Data other than using the owner’s API to make it available in the Platform.

4.3 In case of Insolvency

If Miros 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’ position in the Agreement, the User shall have the right to recover, access and obtain a copy of their Data stored in the Platform for the past 12 months.

5. Term and Termination

The Agreement shall enter into force on the Effective Date stipulated in the Form of Agreement and shall remain in full force and effect until it expires or is terminated in accordance with the terms set out below.

During the contract 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.

In the event the agreement between Miros and Microsoft for the storage of Data is terminated, Miros shall use its best endeavours to find an alternative sub-supplier on similar terms as with Microsoft, and shall transfer all Data to such alternative sub-supplier at no cost for the User. If it is not possible to find such alternative sub-supplier within a reasonable time and on similar terms as the Microsoft agreement, Miros may terminate the Agreement. The date of termination will be the same as the termination of the Microsoft agreement.

6. Pricing and payment terms

6.1 Escalation and adjustment of the price

The prices shall not be subject to escalation during the first 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[1] 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 12 months after the Effective Date. Such escalation may also take into account any change in the price for the services provided by Microsoft or such other supplier of storage services used to store Data.

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

6.2 Invoicing

Unless otherwise agreed, Miros shall invoice the User on a monthly basis. Payment shall be made within thirty (30) days from the date the invoice was issued by Miros. Late payment shall be subject to interest in accordance with the Norwegian Act relating to Interest on Overdue Payments, etc. (NO: Forsinkelsesrenteloven).

6.3 The User’s non-payment

In the event the User has not paid an undisputed amount within the time specified in Clause 6.2, Miros shall notify the User of such non-payment. If payment is not received by Miros within 60 days after such notification was issued, Miros may, without further notification, suspend the User’s, including all Authorised Users’, access to the Platform. The User and Authorised Users will regain access to the Platform 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 to terminate in accordance with Clause [5].

7. Service Level Guarantee

Unless otherwise is specifically agreed, the Platform shall be available for the User and Authorised Users 95 % of the time. The Platform is considered available when it functions as intended without any material defects or delays, and is available to the User and Authorised Users connected to the internet. Downtime is calculated from the time the User notifies Miros.

Availability is calculated on a monthly basis.

Upon breach of the service level guarantee, the User shall be entitled to a standardised compensation as stipulated below:

The above service level guarantee is not applicable for any downtime caused by planned downtime in the services provided by Microsoft, any downtime in third-party software or hardware used by the User or Authorised Users, or other matters beyond Miros’ control and such downtime shall not be included in the calculation of availability. Further, any downtime caused by planned maintenance, updates or improvements of the Platform shall not be included in the calculation of availability, such planned maintenance, updates or improvements, as well as its expected duration, being announced no later than 24 hours prior to the planned downtime.

The above compensation shall be the User’s sole remedy for breach of the service level guarantee.

8. Data Protection

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

9. Liabilities and Indemnities

9.1 Definitions

For the purpose of this Clause 9, the following definitions shall apply:

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

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

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

9.2 Miros indemnification

Miros shall indemnify User Group from and against any claim concerning:

1. personal injury to or loss of life of any employee of Miros Group, and
2. loss of or damage to any property of Miros Group,

and 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 User Group.

9.3 User indemnification

The User shall indemnify Miros Group from and against any claim concerning:

1. personal injury to or loss of life of any employee of User Group, and
2. loss of or damage to any property of User Group,

and 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 Group.

9.4 Total cap

Notwithstanding any other provision in the Agreement to the contrary, the maximum cumulative liability of Miros to the User 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 Group’s negligence, which are suffered or incurred by the User Group and which are directly or indirectly connected with the Agreement shall be limited to the equivalent of 12 months’ payment for the Services.

9.5 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.

9.6 Third Party Claims

Miros shall not be liable for any claims from Third Parties relating to the User’ Group’s use of the Platform, the Data, the Other Data or the performance of the Services. The User shall defend, indemnify and hold harmless Miros Group for any such claims.

10. Governing law and dispute resolution

The Agreement shall be governed by the laws of Norway.

Any dispute between the Parties relating to this Agreement, and which cannot be settled amicably, shall be subject to the exclusive jurisdiction of the court of Oslo.

[1] According to Statistics Norway: https://www.ssb.no/en/priser-og-prisindekser/statistikker/kpi