Terms and Conditions for the use of the Actiflow Wind Assessment Tool

Interpretation

The words of which the initial letter is capitalized have meanings defined under the following conditions.
The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

For the purposes of these Terms and Conditions:

• “Account” means a unique account created for You to access Our Service or parts of Our Service.
• “Affiliate” means an entity that controls, is controlled by or is under common control with the Company or You, where “control” means ownership of 50% or more of the shares or equity interest.
• “Agreement” means the agreement that operates between You and the Company.
• “Company” (referred to as either “the Company”, “We”, “Us” or “Our” in these Terms) refers to Actiflow B.V.
• “Content” refers to content such as text, images, CAD files or other information that can be posted, uploaded, linked to or otherwise made available by You, regardless of the form of that content.
• “Device” means any device that can access the Service such as a computer or a digital tablet.
• “Documentation” means “how to” user guides, FAQ and reference material on the Website or within the Service that describe the capabilities and operational features of the Service.
• “Fee” means the applicable fee payable by You to the Company for the Service Credits or a Subscription purchased by You.
• “Feedback” means feedback, innovations or suggestions sent by You regarding the performance or features of Our Service.
• “Professional Support” means the professional technical support with respect to the Service listed in the Website.
• “Service” refers to the Actiflow Wind Assessment Tool, accessible from the Website or https://actiflowportal.com.
• “Service Credit” means credits for the one-of right to access and use the Service, as further described in the Documentation, and/or for the access to Professional Support.
• “Subscription” means a subscription Agreement that relates to the Service.
• “Subscription Term” means the period of 12 months beginning on the first start date of a Subscription.
• “Terms and Conditions” (also referred to as “Terms“) mean these Terms and Conditions that apply between You and the Company regarding the use of the Service and the agreement(s) that operates between You and the Company.
• “User Support” refers to information requests about the proper use of the Service, the remedy for defects and the maintenance of the Service.
• “Website” refers to windtool.com.
• “You” (or “Your”) means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.

These are the Terms and Conditions governing the use of the Service and the Agreement. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service.

Your access to and use of the Service and Professional Support is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service.

By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service.

You represent that You are over the age of 18. The Company does not permit those under 18 to create an Account or use the Service.

The Service may only be used within the scope for which the Services are intended under these Terms and applicable law.

Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the privacy policy of the Company. Our privacy policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Service or the Website and tells You about Your privacy rights and how the law protects You. Please read Our privacy policy carefully before using Our Service.

To use the Service You must create an Account with Us. After You have created an Account, You will be contacted to schedule an onboarding call for providing information relevant to Your Account and the Agreement(s) such as Your company name, address, VAT number, reference or PO number, etc.

You must provide Us with information that is accurate, complete, and current at all times in order to purchase Service Credits and/or a Subscription for and to use the Service. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of Your Account and the use of the Service subject to these Terms.

By accepting these Terms, You represent that You have the legal power to do so. You represent and warrant that You have the authority to bind the company, or other legal entity on behalf of which You are accessing or using the Service and You understand and agree that this company or other legal entity is bound by and responsible for ensuring that You comply with these Terms.

You are responsible for safeguarding the username and password that You use to access the Service and for any activities or actions that occur under Your username and password.

You agree not to disclose Your password to any third party. You must notify Us immediately upon becoming aware of any breach of security or unauthorized use of Your Account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization.

You must inform Us via the contact details indicated below if You think Your personal information, including but not limited to username, password or personal data, has been violated, unduly disclosed or stolen.

Access to the Service and Professional Support are subject to (i) the provision by You of all necessary information for the purposes of Your Account in the onboarding call and (ii) the payment with Service Credits You can purchase through your Account. Prices and information with respect to the Service and Professional Support are outlined in the respective sections of the Website and are subject to change without notice.

You must choose the desired number of Service Credits or Subscription and verify Your purchase selection. After having reviewed the information in the purchase selection, You may place the order by submitting it. The purchase contract is entered into at the moment You receive the order confirmation. All notifications of Us to You shall be sent to the email address provided by You.

You can buy Service Credits for one-off use of the Service and for Professional Support as outlined in the respective sections of the Website. If You select and subscribe to a Subscription this Subscription includes a discount on the Fee of a number of Service Credits specified on the Website.

Service Credits are valid for a period of 3 years after purchase, except for Service Credits for Professional Support that are included in the Subscription, which have a validity of 1 year.

A Subscription comes into effect after payment of the relevant Fee.

After each Subscription Term, Your Subscription will automatically renew for the same period of time (e.g., 12 months), unless We or You cancel the auto-renewal or otherwise terminate the Agreement before the end date of the current Subscription Term. You authorize the Company to invoice You or charge the designated payment method at the start of each new Subscription Term.

Subscriptions are for named individuals and cannot be shared or used by more than one individual at a time.

Subject to these Terms the Company hereby grants You a non-exclusive, non-transferable, revocable, internal license to access and use the Service for the use for which You have paid the Service Credits.

Permission to use the Service is licensed, not sold. You shall use the Service solely as permitted in these Terms and shall not license, sublicense, sell, transfer, assign or otherwise make the Service available to any third party.

Use of the Services may require compatible Devices, stable internet access, certain software, periodic updates and may be affected by the performance of these factors. We reserve the right to limit the number of Accounts that may be created, and the number of Devices associated with an Account. You agree that meeting these requirements is Your responsibility.

Subject to these Terms and payment of Service Credits, We shall use commercially reasonably efforts to make the Service available for access after payment, twenty-four (24) hours, seven (7) days a week, except for: (a) planned downtime (for which We shall give at least eight (8) hours’ notice via the Website or
(b) any unavailability caused by circumstances beyond Our reasonable control, including strikes or other labour problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or powersystem not within Our possession or reasonable control, and denial of service attacks.

We warrant that during Your access the Service shall perform materially in accordance with the Documentation. We do not warrant that Your use of the Service will be error-free or uninterrupted.

We will provide User Support and Professional Support, the latter subject to the payment of Service Credits, through Our online help center. Support requests must be submitted via Your Account, or to windtool@actiflow.com. Support is available from 9 AM to 5 PM CET Monday through Friday.

Documentation is available through the Website or within the Service, as may be updated from time to time.

Your right to post content

The Service requests and allows You to upload, share or provide Content. You are responsible for the Content that You post to the Service, including its legality, reliability, and appropriateness.

By posting Content to the Service, You grant Us the right and license to use such Content on and through the Service. You retain any and all of Your rights to any Content You submit, post or display on or through the Service and You are responsible for protecting those rights. To the extent permitted by the applicable law, You waive any moral rights in connection with the Content You provide.

You represent and warrant that: (i) the Content is Yours (You own it) or You have the right to use it and grant Us the rights and license as provided in these Terms, and (ii) the posting of Your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.

Content backups

The Service is not a back-up service and accordingly the Company will not be responsible for any lost data, whether it is Content or data provided as part of the Service, and does not guarantee there will be no loss or corruption of data.

A Corrupt or invalid backup may be caused by, without limitation, Content that is corrupted prior to being backed up or that changes during the time a backup is performed.

You acknowledge that the Company has no liability related to the integrity of Content or the failure to successfully restore Content to a usable state.

You agree to maintain a complete and accurate copy of any Content in a location independent of the Service.

The Service and its original content (excluding Content provided by You or other users), features and functionality are and will remain the exclusive property of the Company and/or its licensors.

The Service and Our trademarks may not be used in connection with any other product or service without the prior written consent of the Company.

You assign all rights, title and interest in any Feedback You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.

These Terms shall commence on the date You submit a request for an Account and shall continue indefinitely until terminated under this section.

We may terminate or suspend Your Account and the Agreement immediately, without prior notice or liability, for any reason whatsoever, including without limitation if You breach these Terms and Conditions.

If We terminate Your Account and the Agreement for convenience, Our only obligation to You will be to refund pro rata the Subscription Fee and any unused and still valid Service Credits actually paid by You.

Upon termination, Your right to use the Service will cease immediately.

If You wish to terminate Your Account, You may simply discontinue using the Service. Such termination does not release You from paying any amount that You may owe Us.

The right to access and use the Service and or Professional Support is subject to the payment of Service Credits.

Fees for Service Credits and credits for Professional Support are non-refundable except if these Terms have been terminated by You for Our material breach or in case of the termination by the Company of Your Account and the Agreement for convenience.

All Fees will be paid within 15 days of the invoice date.

You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase of the Fee.

We reserve the right to modify these Terms at any time by publishing the revised Terms on the Website and/or providing a copy of these Terms to You by email. The revised Terms shall become effective within 5 business days of such publication or provision to You, unless You expressly accept the revised Terms earlier by clicking on the accept button. Your express acceptance or Your continued use of the Service after expiry of the notice period of 5 business days (being weekdays excluding any statutory holidays in the Netherlands), shall constitute Your acceptance to be bound by the terms and conditions of the revised Terms.

We may change the Service by posting the change on the Website or any other method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate Your Subscription(s). Your continued access to and use of the Service after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required.

We will provide updates and upgrades to the technology underlying the Service from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Service.

One-off Professional Support may be requested subject to the payment of Service Credits as specified on the Website. These Terms apply to any Professional Support. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to any of Our technology (including the Service) will be owned by and vest in the Company exclusively including all title and interest in and to all intellectual property rights therein.

NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR, THE ENTIRE LIABILITY OF THE COMPANY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THESE TERMS AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU THROUGH THE SERVICE.

IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THIRD PARTY SOFTWARE AND/OR THIRD PARTY HARDWARE USED WITH THE SERVICE, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS TERMS), EVEN IF THE COMPANY OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

THE SERVICE IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE, OR RELIABILITY STANDARDS, OR LOCAL, NATIONAL OR INTERNATIONAL STANDARDS OR GUIDELINES, OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANY OF THE COMPANY’S PROVIDERS MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE SERVICE, OR THE INFORMATION, CONTENT, AND MATERIALS OR PRODUCTS INCLUDED THEREON; (II) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE SERVICE; OR (IV) THAT THE SERVICE, ITS SERVERS, THE CONTENT, OR EMAILS SENT FROM OR ON BEHALF OF THE COMPANY ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

To the extent the foregoing liability limitations or the warranty disclaimers are not allowed by applicable law, then Our liability and Your remedy, shall be limited to the refund of any still valid Service Credits or Fees paid by You for such defective Service.

The limitations of liability and “AS IS” and “AS AVAILABLE” disclaimer will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

You agree to defend, indemnify and hold Us and Our subsidiaries, Affiliates, directors and employees harmless from and against any and all claims, costs or debt, including, but not limited to, legal fees and expenses, arising from Your

• use of and access to the Service, including any Content transmitted to the Service;
• violation of these Terms;
• violation of any third party rights, including, but not limited to, any right of privacy or intellectual property rights;
• violation of any statutory law, rule, or regulation;
• Content that is submitted from Your Account, including third party access with Your unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information;
• wilful misconduct; or
• statutory provision by You or Your Affiliates, officers, directors, agents, co-branders, partners, suppliers and employees to the extent allowed by applicable law.

The laws of the Netherlands shall govern these Terms and Your use of the Service, including all tort claims, without regard to the rules governing conflict of laws.

If You have any concern or dispute or claim about the Service, You agree to first try to resolve the dispute or claim informally by contacting the Company.

If the dispute or claim is not resolved informally, the court of The Hague, the Netherlands shall have exclusive jurisdiction to settle any dispute or claim.

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not affect Your or Our ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

If You have any questions about these Terms and Conditions, You can contact Us by visiting this page on Our website: https://actiflow.com/contact/ .