TERMS OF SERVICE
“30 Days Money Back Guarantee” – Limited Offer Terms
Client may terminate the Purchase Order within 30 days of the start date (“the Initial Period”) by sending Windward a written notice of termination at least one (1) week prior to the end of the Initial Period. In the event that the Purchase Order is terminated during the Initial Period, the Initial Period will be free of charge.
The Annual Fee shall be charged upon the elapse of the Initial Period.
This limited offer is valid until December 31, 2023. Windward reserves the right to extend or reduce the term of this limited offer. Windward has the right to end or modify this offering at any time and for any reason. Other restrictions may apply.
Ocean Freight Visibility (0FV)
These Terms of Service (these “ToS”) govern the use of Windward’s OFV Services (as defined below). These ToS are entered into by you (“Client” or “You”) and the Windward entity defined in the Purchase Order (as defined below) (“Windward” or “We”), each a “Party” and together, the “Parties”.
Your access to and use of the Services are conditioned on your acceptance of and compliance with these ToS. By executing a Purchase Order and/or by accessing or using the Services you agree to be bound by these ToS.
“Authorized Users” means those employees and contractors of the Client who are authorized by the Client to use the Services.
“Insights” means all insights, conclusions, distinctions, reports, ratings, indexing and scores, produced by Windward, which relate to the Services.
“Purchase Order” means the written agreement, electronic agreement, proposal confirmed via email or other ordering form or document, through which Client places an order for Services.
“Service(s)” means Windward’s Ocean Freight Visibility (0FV) solutions and/or services and/or application programming interfaces (the “APIs“), provided within the framework of a trial period, test, proof of concept process, commercial engagement or otherwise, whether in exchange of payment or otherwise, as further detailed in a Purchase Order.
“Service Material” means any elements, such as text, data, software, graphics, logs, software, documentation, and/or information of or provided through the Services.
“Windward Data” means Windward’s proprietary data including Insights and/or confidential data obtained by Windward and/or licensed to it from third parties, underlying its products and services.
“Windward Platform” means Windward’s proprietary maritime data analytics and AI platform.
2.Services. Windward owns, operates and offers proprietary maritime data analytics and AI based services, tools and solutions for the broad maritime market, based on Windward Platform. Subject to the terms and conditions hereof and any applicable Purchase Order, (i) Windward will provide the Services set out in each Purchase Order or as otherwise agreed in writing by the Parties, and (ii) Client may access and use, and may permit Authorized Users to access and use, the Services, including the integration and display of the Service in the transport management system or similar services (“Client’s TMS”), made available by the Client to its internal and external users, including Client’s customers, provided that (a) the Service will not be available to Client’s external users as a bulk; and (b) that the integration or display of the Service is only for informative purposes and of supportive or complementary nature and does not constitute a functional substitute to Windward’s services. The Client shall make the Service available to the Client’s TMS’ users on terms and conditions that materially reﬂect these ToS, and (iii) an API Client may create derivative works, develop, test and support an integration of Client’s application on a limited, non-exclusive, non-transferable and revocable basis, for Client’s own internal purposes and use only.
3.Restrictions. Client may not use the Services for any purpose except as expressly set forth in these ToS and the applicable Purchase Order. Client may not reproduce, sell, distribute, broadcast the Services, or any parts thereof or provide access thereto to any third party, other than Authorized Users and Client’s TMS, unless and to the extent explicitly agreed to in writing by Windward. Client shall not(a) use the Services for timesharing or service bureau purposes, (b) use the Services to develop any similar or competitive service, (c) use the Services in violation of applicable law or to evade, avoid, or circumvent any applicable sanctions (d) reverse engineer or attempt to find the underlying code of the Services, or any parts thereof; (e) employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use the Services, (f) access or use the APIs in a manner that exceeds a reasonable request volume or constitutes abusive usage, as determined by Windward.
4.Client’s Authorization. The Client understands and agrees that in order to provide the Service, Windward must utilize the containers data provided by Client to obtain related container information from third parties, such as carriers. By accepting these ToS, the Client authorizes Windward to obtain and third parties to provide Windward with information regarding such containers. Client agrees to serve as a reference customer for the Windward Platform and will cooperate with Windward’s reasonable marketing requests to identify Client as a user of the Platform and display its logo in marketing and promotional materials.
5.Intellectual Property. As between the Parties, all right, title and interest in and to (i) the Services, Windward Platform and Windward Data, and any part thereof, (ii) all enhancements, derivatives, versions, customizations, bug fixes or improvements to the foregoing, and (iii) any and all input data and information that is used by Windward to produce and/or develop the Services, but excluding, if applicable, Client’s Confidential Information (as defined in Section 8 below) are and shall at all times remain the exclusive property of Windward. The Windward Platform, Windward Data and the Services, including the Service Material, are protected by copyright, trademarks, database rights and other local and international laws. Services rendered may contain materials for which data providers from whom Windward acquires and/or licenses data and other materials, reserve all copyrights and/or database rights.
6.Support Services and Client Support. technical support and/or operational support services in connection with Client’s use of the Services may be provided pursuant to the terms set forth in the applicable Purchase Order. Windward may update, upgrade or make changes to the Services, at its sole discretion, on a regular basis so long as such updates and upgrades do not materially adversely affect the functionality thereof.
7.Fee and Payment. The Services may be provided by Windward free of charge During a limited trial period as may be set out in the applicable Purchase Order, solely for Client’s internal evaluation purposes (“Trial Period”). The applicable fees for Client’s access to the Services beyond or in excess of the Trial Period shall be set forth in the Purchase Order (“Fee(s)”). Windward will issue an invoice indicating the Fees that are owed in accordance with the invoicing schedule set forth in the applicable Purchase Order. All Fees will be due and payable net to Windward, as further detailed in the Purchase Order. The Fees are exclusive of all applicable transaction taxes, including sales, use and VAT taxes, and Client will be responsible for all taxes and other amounts imposed by any governmental agency on the Fee payable under these ToS (except for corporate income tax imposed on Windward in Israel). Payment shall be made in US Dollars, unless agreed differently in the Purchase Order, via wire transfer to Windward’s bank account, in accordance with the details to be provided in writing by Windward. In the event the Fee is expressed in different currency than USD in the applicable Purchase Order, any conversion to USD shall be calculated using the Bank of Israel standard exchange rate, applicable for the date of payment. It is hereby agreed that Windward may revise the Fee(s) at the end of the Term or its renewal by providing the Client at least 60 days’ written notice prior to the end of the Term or its renewal specifying the revised Fee(s) for the subsequent renewal term.
8.Confidential Information. The Parties acknowledge that either of the Parties (in this capacity, a “Receiving Party”) may have access to certain non-public, proprietary, confidential and trade secret information, and data, provided or made accessible, regarding the technology, business or future plans (“Confidential Information”) of the other Party (in this capacity, a “Disclosing Party”). Receiving Party agrees for the Term of these ToS and for the period of five (5) years after its termination to (a) not disclose the Confidential Information of the Disclosing Party to any third Party, except its employees, shareholders, directors, officers, corporate affiliates, advisors or consultants (collectively, the “Representatives”), and provided that such Representatives are subject to written agreements containing non-disclosure substantially similar to those set forth herein. Confidential Information shall not include information (i) already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information of the Disclosing Party, (ii) disclosed in published and publicly available materials, (iii) generally known to the public, (iv) lawfully obtained from any third party without restrictions, or (v) required to be disclosed by an order of a competent court, provided that Receiving Party shall provide Disclosing Party with prompt written notice of such requirement and cooperate with Disclosing Party as required to challenge such requirement or obtain a protective order. Notwithstanding the foregoing, if a written Non-Disclosure and Confidentiality Agreement was separately entered between the parties (an “NDA”), it will prevail over this section of the ToS and govern the disclosure and exchange of Confidential Information. Any information exchanged between the Parties with respect to the relationship described herein will be considered Confidential Information under the NDA, and the NDA shall continue to be in effect during the term of these ToS.
10.Warranties; Disclaimers. Windward’s Maritime AI ETA (Estimated Time of Arrival) prediction allows Client to predict the arrival of container vessels at their port of discharge. Maritime AI takes relevant factors into account to calculate ETA prediction for container vessels and is based on information gathered from a variety of sources. Windward warrants that it shall make commercially reasonable efforts to ensure that Windward Data provided to Client through the Services is accurate. Nonetheless, as this Service includes predictive information, Windward does not warrant that the Services, will be precise, accurate, error-free, nor can we make any representation about the Services’ fitness for any particular purpose or availability at all times. Windward will not be liable for any decision or action, made by Client in reliance of the Services or Insights. Except as set forth herein, the Services are provided “As-Is”. Nothing in these ToS will be construed to create rights in favor of any person not a party to these ToS.
Client represents and warrants that it is not identified on, nor shall it provide access to the Services to any individuals or entities identified on, (a) OFAC’s list of Specially Designated Nationals (“SDN List”); (b) UK’s HM Treasury’s Consolidated List of Sanctions Targets; (c) EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions; (d) any other applicable sanctions lists; or (e) any entity owned by twenty five percent (25%) or more, directly or indirectly, individually or in the aggregate by individuals or entities identified in (a) through (d) above (collectively “Trade Sanctions”).
In no event shall either Party or their agents, principals or licensors be liable to the other Party for incidental, indirect, special or consequential damages (however arising) including, but not limited to, loss of profit, loss of use, loss of data, loss of revenues, damages for lost information, lost profits or business interruption, or damages to business or reputation arising out of the performance of any aspect of these ToS. The liability of either Party under these ToS shall not exceed amounts paid by Client to Windward under the applicable Purchase Order. The foregoing limitations of liability shall not apply to any statutory rights that may not be disclaimed and to the Client’s breach of Section 5 (Intellectual Property) of these ToS.
11.Term and Termination. Term. The term of these ToS shall commence on the effective date of the first Purchase Order, and end upon the termination of all Purchase Orders entered between the Parties (“Term”). If no Purchase Order is executed by the Parties, these ToS shall commence on the date of Client’s first access to or use of the Services and continue to be in effect for the entire period of Client’s access to the Services.
Termination for convenience. Unless expressly agreed in a Purchase Order, these ToS may not be terminated for convenience by the Client. Termination by either party for cause. Either Party may terminate these ToS at any time if the other Party has committed any material breach which was not cured within fourteen (14) days of notice to the breaching party, including, without limitation, Windward’s right to terminate these ToS with immediate effect and without written notice (a) if Client uses the Services in violation of applicable law, including without limitations export controls laws and Trade Sanctions (b) Client’s failure to pay the Fee, and (c) unauthorized use of the Services by Client.
Client acknowledges and agrees that Windward may, in its sole discretion, fully or partially suspend the Services (or any part thereof) or terminate these ToS altogether, if: (i) any data povider(s) fails or ceases to provide its services to Windward, provided that Windward shall have undertaken all reasonable efforts to solicit such data provider(s) to reinstate its services or remedy its failure, and/or (ii) Windward is or may be prevented by applicable law, regulation or other impediment to provide the Services. Effect of Termination. Immediately upon any termination of these ToS or an applicable Purchase Order (i) Client’s access to and use of the Services shall cease, and (ii) within thirty (30) days after the effective date of termination, at Windward’s option, either return or destroy all copies of the Windward Data, and (iii) Client shall pay any outstanding Fees and other amounts owed to Windward hereunder. Survival. The provisions of and the Parties’ obligations under Sections 3 (Restrictions), 4 (Client’s Authorization), 5 (Intellectual Property), 8 (Confidentiality), 9 (Privacy and Data Processing), 10 (Warranties; Disclaimer), this Section 11 (Term and Termination), 12 (US Government Use) and 13 (Miscellaneous) shall survive the termination or expiration of these ToS for any reason.
12.US Government Use. U.S. Government as Licensee. This Section applies whenever the Client is the U.S. federal government, or any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the U.S. federal government. In such case, the terms and conditions of this Section shall pertain to Client’s use and disclosure of the Services and shall supersede any conflicting contractual terms or conditions. Commercial Computer Software. The Services are “Commercial computer software” and documentation within the meaning of the applicable acquisition regulations (e.g., FAR 2.101). The Services are works with all rights reserved to Windward under the copyright laws of the United States. Exceptions for U.S. Government. The subsection titled Law and Jurisdiction in Section 13 of these ToS shall not apply to the U.S. federal government but shall continue to apply to prime contractors and subcontractors of the U.S. federal government. Disputes with the U.S. federal government shall be subject to resolution to the Contract Disputes Act of 1978, as amended. All other provisions of these ToS remain in effect as written.
13.Miscellaneous. Entire Agreement: These ToS, and thereby related Purchase Order and the NDA is the entire agreement between Client and Windward regarding the provision of the Services and Client’s use thereof and supersedes any and all other earlier agreements between the Parties, whether written or oral, regarding the Services. No waiver: A waiver of any default hereunder or of any of the terms and conditions of these ToS shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed. Assignment: These ToS, and any related Purchase Order, may not be assigned by either party to any other entity without the express written consent of the other party; provided, however, that Windward shall have the right to assign these ToS, and any related Purchase Order, to its affiliates or subsidiaries or any corporation or other entity owning or acquiring all or substantially all the assets and business of Windward Severability: In the event that If any part of these ToS shall be deemed illegal, incorrect or unenforceable, the content or validity of the other parts remains uninfluenced by this fact. Law and Jurisdiction: These ToS shall be governed by the laws of the State of Israel, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Israel to the rights and duties of the Parties. Any dispute arising out of or in connection with these ToS, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by Israeli courts, located in Tel Aviv. Each Party waives any objection that it may have with respect to such venue based on the claim of forum non conveniens or otherwise. Notwithstanding the foregoing, either Party may seek an injunction or other equitable relief to enforce any provision of these ToS in any court of competent jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Goods is specifically excluded from these ToS.
Last Updated: May 30, 2023