These Terms of Service (“ToS”) govern the use of the Services (as defined below) and are entered into by you (“Customer” or “You”) and Windward Ltd., holder of registration number 514386903, a company formed under the laws of Israel, with an address at 2 Hashlosha Street, Tel Aviv – Israel (“Windward” or “We”), each a “Party” and together, the “Parties”.
By accessing or using the Services you agree to be bound by these ToS, which may be updated from time to time, at Windward’s sole discretion. Your continued access to and use of the Services indicate that you have read and agreed to all such updates. For your convenience, please follow this link to review the most updated version of the ToS – https://www.windward.ai/terms-of-service/. IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY, ORGANIZATION, GOVERNMENT OR OTHER ENTITY, THEN (A) YOU INCLUDE YOU AND THAT ENTITY, AND (B) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THESE TOS AND THAT YOU AGREE TO THESE TOS ON SUCH ENTITY’S BEHALF.
“Authorized Users” means those employees, contractors and affiliates of the Customer who are authorized by the Customer to use the Services.
“Customer Data” means any and all information and/or data, in any form, uploaded to the Vessels Risk Portal or provided by the Customer to Windward in connection with the Services, which may include but is not limited to: Vessel names; IMO numbers; Vessel class; Vessel flag; MMSI numbers; Vessel beneficial owner; Registered owner; Commercial manager; Technical manager; Commercial controller; Operator; and ISM Manager.
“Data Providers” means all third parties from whom Windward acquires and/or licenses raw data and other materials (including, without limitations, Automatic Identification System (AIS) data, maps, etc.), which is used by Windward, including to develop Windward Data and on which Windward relies to provide the Services.
“Documentation” means materials, user guides, manuals, drawings and any documentation related to the Services or any parts thereof, provided by Windward.
“Fees” means the applicable fees paid by Customer for the Services, as set forth in the applicable Service Order.
“Insights” means any and all insights, conclusions, distinctions, reports, ratings, indexing and scores, including but not limited to Risk Scores and Reports, produced by Windward, which relate to any vessel, fleet, areas, entity and/or anything else within the Services.
“Professional Services” means technical support and/or operational support services provided by Windward in connection with the Services.
“Report(s)” means any and all reports, summaries, reviews and briefs, created by Windward and provided in any manner or form as part of the Services, including, without limitations, to vessel, fleet or area analysis reports.
“Risk Scores” means Windward’s risk rating scores for vessels and/or fleets and/or corporate entities and any of Windward’s proprietary underlying features.
“Services” means any services, provided by Windward to You via the Vessels Risk Portal, in connection with Your Customer Data, which may include but is not limited to: (i) One-time Vessels Report; (ii) Vessels Report Alerts; (iii) Monthly Vessels Report; and (iv) Quarterly Vessels Report, whether in exchange of payment or otherwise, and Professional Services, separately and collectively.
“Service Material” means any elements, such as text, data, software, graphics, logs, software, Documentation and/or information of or provided through the Services.
“Service Order” means the electronic ordering form, through which Customer places an order for Services, within the Vessels Risk Portal.
“User Account(s)” unique user account(s) which have been provided by Windward to Authorized Users for accessing the Services.
“Vessels Risk Portal” means Windward’s dedicated portal for providing the Customer with various risk related assessment Reports, in connection with, among other things, its own Customer Data.
“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 the Services.
“Windward Platform” means Windward’s proprietary maritime data analytics and AI platform.
2. Services Windward Provides & Validation Process.
Windward Services. Windward owns, operates and/or offers proprietary maritime data analytics and AI based services, tools and solutions for the broad maritime and trade ecosystem, based on Windward Platform. Subject to the terms and conditions hereof and any applicable Service Order, (i) Windward will provide the Services set out in each Service Order and (ii) Customer may access and use, and may permit Authorized Users to access and use, the Services, on a limited, non-exclusive, non-transferable and revocable basis, for Customer’s own internal business purposes and use only. For the avoidance of doubt, any services and/or products provided by Windward to Customer, which do not qualify as Services hereunder, will be governed by a separate written agreement to be entered into by the Parties.
Validation Process. The provision of any Services to the Customer will at all times be conditioned upon and subject to the successful completion of an internal review and validation process, of Customer’s details and information (including any Customer Data and Customer’s reasonable and fair use of the Services), conducted in accordance with Windward’s policies and at its sole discretion (“Validation Process”). Windward reserves the right to deny Services, to any Customer, pursuant to the performance and the results of any Validation Process.
3. Restrictions Imposed on You While Using the Services.
Customer may not use the Services or any Service Material in any manner and for any purpose except as expressly set forth in these ToS and the applicable Service Order. Customer may not reproduce, sell, rent, publicly perform, display, disseminate, distribute, broadcast, retransmit or circulate the Services, or any parts thereof or provide access thereto to any third party. Customer shall not, and shall not permit any third party, to: (a) use the Services to develop any similar or competitive service; (b) use the Services in violation of applicable law or of any third party’s rights; (c) attempt to modify, frame, republish, transmit or distribute the Services, or any portion thereof, including Windward Data, or create derivative works from the Services; (d) circumvent any security or access control mechanism of the Vessels Risk Portal (by way of ‘virtualization’, ‘multiplexing’, ‘pooling’ or otherwise), or any part thereof; or (e) provide Customer Data relating to or owned by any third party. In the event User Accounts are provided as part of the Services, Customer (a) may not permit use of or access to the Customer’s User Account by a third party; and (b) shall keep, and cause its Authorized Users to keep, in strict confidence the login initials for the User Accounts and shall be responsible for any activities or actions under the User Accounts, including without limitation, unauthorized use of the User Accounts by third parties.
4. Customer Acceptable Content Policy.
All Customer Data provided to Windward, must: (a) be accurate; (b) be legally owned and delivered by the Customer; and (c) comply with all applicable laws and regulations. Customer Data must not: (a) violate any 3rd party rights (including intellectual property and privacy rights); (b) be defamatory of any person; (c) be obscene, offensive, hateful or inflammatory; (d) bully, insult, intimidate or humiliate; (e) promote sexually explicit materials; (f) promote violence; (g) promote discrimination of any kind; (h) be used for deceiving any person or entity; (i) promote any illegal activity; (j) be in contempt of court; (k) be threatening, abusive or invade another’s privacy or cause annoyance, inconvenience or needless anxiety; (l) be likely to harass, upset, embarrass, alarm or annoy any other person; (m) lead to the impersonation of any person or the misrepresentation of Customer’s identity or affiliation with any person; (n) contain any advertising or promote any services or web links to other sites; and (o) contain and/or introduce any viruses and/or malware and/or trojan horse and/or any other type of malicious / harmful code, component or element. For the avoidance of doubt, any violation of the Acceptable Content Policy detailed herein may result in: (i) the immediate removal of breaching Customer Date and/or termination of the Services; (ii) the disclosure of Customer’s identity to any third party who is claiming that any content and/or data provided by Customer constitutes a violation of their rights; and (iii) any other action Windward reasonably deems appropriate. For the avoidance of doubt, Services will only reflect and be based upon the Customer Data provided to Windward and may only be updated pursuant to the provision of updated Customer Data by Customer.
5. Windward Intellectual Property and Customer Feedback.
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 are and shall at all times remain the exclusive property of Windward. Services rendered may contain materials for which Data Providers, including VesselsValue Limited, reserve all copyrights and/or database rights. 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. Any and all data, information, materials, feedback and insights Customer and/or Authorized Users may share with Windward, with regards the Services or otherwise, either in tangible, electronic, oral, visual or any other form, such as comments, product comparisons, performance testing results, defects or bug reports, functional or feature requests, benchmarks, ideas, suggestions, critiques and recommendations, etc. (“Customer Feedback”) is entirely voluntary. Customer agrees that: (i) Windward may freely use any Customer Feedback in perpetuity and without any obligations to Customer, and may further disclose, reproduce, license, distribute and otherwise commercialize and exploit all Customer Feedback, in any Windward products and/or services in perpetuity and without any obligations to Customer; and (ii) Windward shall be the sole owner of any improvement, modification, invention and/or development relating to its products and/or services (whether patentable or not) made on the basis of or in connection with Customer Feedback.
6. Windward License Rights.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THESE TOS, CUSTOMER GRANTS WINDWARD, ITS AFFILIATES, ITS SUCCESSORS AND ASSIGNEES, A PERPETUAL, IRREVOCABLE, NON-TERMINABLE, ROYALTY FREE, SUBLICENSABLE, TRANSFERABLE, WORLDWIDE LICENSE AND RIGHT, UNDER ALL INTELLECTUAL PROPERTY, MORAL, DATABASE OR PRIVACY RIGHTS, TO FREELY USE, DISTRIBUTE, MODIFY, CREATE DERIVATIVE WORKS, DISPLAY, MAKE AVAILABLE, SELL, OFFER TO SELL AND IMPORT ANY AND ALL CUSTOMER DATA IN ANY MANNER AND FOR ANY PURPOSE, INCLUDING EXERCISING THE FOREGOING RIGHTS THROUGH THIRD PARTY SUBCONTRACTORS.
7. Professional Services.
Professional Services in connection with Customer’s use of the Services may be provided at Winward’s sole discretion. Windward may update, upgrade or make changes to the Services, at its sole discretion, on a regular basis.
8. Fees and Payments.
9. Confidential Information.
Customer may have access to certain non-public, proprietary, confidential and/or trade secret information, data and materials, provided or made accessible in any manner or form, regarding the technology, business and/or future plans of Windward (“Confidential Information”). Customer agrees for the term of these ToS and thereafter to (a) not disclose the Confidential Information to any third party, except its employees, shareholders, directors, officers, corporate affiliates, advisors or consultants (collectively, the “Representatives”) and provided that such Representatives have a need to know the Confidential Information to fulfill Customer’s obligations hereunder, are subject to written agreements containing non-disclosure and non-use obligations substantially similar to those set forth herein and the Customer remains responsible for the breach of confidentiality by the Representative; (b) at all time take similar measures to keep the Confidential Information confidential that Customer makes in respect of its own confidential information of like importance, which efforts and measures shall be no less than reasonable; and (c) not make any use of the Confidential Information except in accordance with these ToS. Notwithstanding anything else to the contrary in these ToS, Confidential Information shall not include information (i) already lawfully known to or independently developed by Customer without access to or use of Confidential Information of Windward, (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 Customer shall provide Windward with prompt written notice of such requirement and cooperate with Windward as required to challenge such requirement or obtain a protective order. Upon request from Windward, all Confidential Information shall be returned to Windward or destroyed. For the avoidance of doubt, Customer Data shall not be regarded as confidential information of Customer.
10. Privacy and Data Processing.
11. Warranties; Disclaimers.
Windward warrants that it shall make commercially reasonable efforts to ensure that Windward Data provided to Customer through the Services is accurate. Nonetheless, Customer acknowledges and agrees that Windward does not warrant that the Services, including without limitations, Windward Data will be precise, accurate, error-free or available at all times, or that defects will be corrected. Furthermore, Customer acknowledges and agrees that Insights are based on Windward’s internal processes and evaluations only and do not attest, in any manner or form, to any compliance or non-compliance with any external standard, provision, regulation or law. Customer has sole responsibility for any actions or decisions taken in reliance on the Services and/or Windward Data and/or Insights in particular, and Windward will not be liable for any decision or action, including, without limitation, writing, underwriting, declining, premium, pricing, vetting or contracting related, made by Customer in reliance of the Services. Except as set forth herein, the Services are provided “As-Is”, and Windward and its affiliates, members, directors, officers, employees, agents and contractors disclaim all implied or statutory warranties or representations in respect of the Services and/or any Windward Data and/or Insights provided through the Services, including without limitation any warranties of merchantability, fitness for a particular purpose and non-infringement. In addition to the foregoing, it is expressly acknowledged and agreed that Windward will not be liable or responsible in negligence or otherwise to any person not a party to these ToS for (i) any information, data (including Windward Data) or advice expressly or impliedly given by Windward, or (ii) any act, omission or inaccuracy by Windward. Nothing in these ToS will be construed to create rights in favor of any person not a party to these ToS.
12. Customer Compliance.
Customer may use the Services only in compliance with these ToS and all applicable local, state, national, and international laws, rules and regulations. Customer shall not use the Services and shall not permit Authorized Users to user the Services for the purpose of providing services or data to any entity in violation of applicable maritime laws, export control law or to any entity that may endanger or has a history of endangering vessel safety or navigation.
13. Term and Termination.
Term. The Services will enter into effect and be deemed initiated when first made available and/or accessed to by the Customer, as evidenced by Windward’s records, and shall continue in full force and effect until the earlier of: (a) either Party providing a 30-day prior written notice of termination, for any reason, to the other Party; (b) Windward terminating these ToS, at any time, in the event Customer committed any material breach which was not cured within 7 days of notice; and (c) Windward terminating these ToS with immediate effect and without written notice in the event (i) Customer uses the Services in violation of applicable law, (ii) Customer’s failure to pay any fees due to Windward, (iii) of any unauthorized use of the Services by Customer, (iv) of any provision and/or use a of Customer Data, in violation of these ToS, (v) any Data Provider fails or ceases to provide its services to Windward; and (vi) Windward is or may be prevented by applicable law, regulation or other impediment to provide the Services (“Term”).
Notice of Termination. Any notice of termination by the Customer must be clear and explicit and should be provided to the Company via this form. Following such termination request, Company shall terminate Customer’s Services, within 30 days, without affecting any of Customer’s preexisting obligations. Effect of Termination. Immediately upon any termination of these ToS (i) Customer’s access to and use of the Services shall cease, and (ii) Customer shall pay any outstanding Fees and other amounts owed to Windward hereunder. Survival. The provisions of and the Parties’ obligations under Sections 3 (Restrictions Imposed on You While Using the Services), 4 (Customer Acceptable Content Policy), 5 (Windward Intellectual Property and Customer Feedback), 5 (Windward License Rights), 9 (Confidential Information), 10 (Privacy and Data Processing), 11 (Warranties; Disclaimer), this Section 13 (Term and Termination), 14 (Changes & Modifications to the Services and/or Vessels Risk Portal ); 15 (Limitation of Liability), 17 (US Government Use) and 18 (Miscellaneous) shall survive the termination or expiration of these ToS for any reason.
14. Changes & Modifications to the Services and/or Vessels Risk Portal.
Customer acknowledges and agrees that Windward may fully or partially suspend and/or modify the Services and/or the Vessels Risk Portal (or any part thereof), for any reason, at any time and without notice.
15. Indemnification Rights.
Customer will indemnify, defend and hold Windward harmless from and against any third-party claims relating to Customer’s: (i) violation of applicable law; and/or (ii) use of the Services and/or Customer Data in breach of these ToS. Windward shall (i) promptly notify Customer of any claim for which it is seeking indemnification, (ii) provide Customer with information, assistance and cooperation in defending the claim at Customer’s cost, and (iii) grant Customer sole control of any such claim; provided, however, that Customer may not settle any claim without the consent of Windward (such consent not to be unreasonably conditioned, withheld or delayed). Windward may be represented in any such proceeding by counsel of its own choosing at its own expense.
16. Limitation of Liability.
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 savings, lost profits or business interruption, or damages to business or reputation arising out of the performance or non-performance of any aspect of these ToS and the exhibits and schedules thereto, whether or not the damaged party shall have been made aware of the possibility of such loss. The liability of either Party under these ToS shall not exceed amounts paid and payable by Customer to Windward under the applicable Service Order. The foregoing limitations of liability shall not apply to: (a) any breach of Section 0 (Confidential Information); (b) Customer’s violation of applicable law; (c) breaches of Sections 3 (Restrictions Imposed on You While Using the Services); (d) breaches of Section 4 (Customer Acceptable Content Policy); (e) breaches of Section 5 (Windward Intellectual Property and Customer Feedback), (f) any acts of gross negligence and/or willful misconduct of Customer; (g) claims of third parties against Windward, arising from, in connection with or related to Customer’s use of the Services in breach of these ToS. Customer expressly agrees that neither Windward nor its agents or principals shall have any liability or responsibility in respect to actions or decisions of Customer in reliance or based on the Services and/or any Windward Data and/or Insights provided through the Services. Further, Windward shall have no liability for any act, omission or inaccuracy of a Data Provider.
17. US Government Use.
U.S. Government as Licensee. This Section 15 applies whenever the Customer 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 Customer’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 section titled Law and Jurisdiction in Section 18 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.
Entire Agreement: These ToS and any related Service Order are the entire agreement between Customer and Windward regarding the provision of the Services and Customer’s use thereof, and supersedes any and all other earlier agreements between the Parties, whether written or oral, regarding the Services. Any advertising, descriptive material or sample provided or issued by Windward in connection with the Services, either in its website, marketing material etc. are provided for approximate illustrative purpose, and shall not form part of the ToS or have any binding force. All exhibits and addendums to these ToS, if any, are an integral part thereof. No other person or entity will be third party beneficiary to these ToS. Non-disparagement: Each Party shall not disparage the other Party or any of its respective members, directors, officers, shareholders, agents or employees or otherwise take any action that could reasonably be expected to adversely affect the business, personal or professional reputation of any of the aforementioned entities and individuals. 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 Service 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 Service 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 whether by operation of law or otherwise; Assignments in violation of the foregoing shall be void. Severability: If any part of these ToS shall be deemed invalid, illegal or unenforceable by a court or arbitral body of competent jurisdiction, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
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 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: June 28, 2021