Terms and conditions AirShaper (version 1.0 March 2019)

About AirShaper

AirShaper, available through the website airshaper.com is a service provided by Zastrugi NV under the trade name AirShaper. Zastrugi NV is a company, established and registered in Belgium, with registered office at 2018 Antwerpen, Kreeftstraat 18 with registration number 0670.623.455; VAT BE0670623455.

You can contact AirShaper by:

- Giving AirShaper a call:+32 486 89 87 86

- Sending AirShaper an email:info@airshaper.com

The Agreement

By accepting this Agreement, either by ticking a box when entering the Site, during account sign-up or by submitting an order form referring to this Agreement, you agree to the terms and conditions set forth in this Agreement. If you do not agree to these terms and conditions, do not use the Site nor the Service.

AirShaper may modify these terms and conditions at any time, but will notify you fourteen (14) calendar days in advance of such modifications, by posting a notification on the Site or, if you have an account, by email or through another reasonable medium, and such modifications shall be effective immediately for the future upon renewal on the Site. Your continued use of the Site shall be deemed to be your conclusive acceptance of the modified terms and conditions. If you do not agree with the modifications, you have the right of termination within those fourteen (14) days. (see: Terms and Termination). However, Service Agreements concluded on the basis of previous terms and conditions remain unaffected but you have to prove the terms which are applicable.

By ordering a project, you accept these terms and conditions and your contract with AirShaper is made subject to these terms and conditions. These terms and conditions shall prevail and be effective notwithstanding any variations or additions contained in any order or other document submitted by you. No modification of these terms shall be binding upon AirShaper or any of its subsidiaries or affiliated companies unless made in writing by an authorized representative of AirShaper.

1. The Service

1.1 Usage of the Service

AirShaper offers the service of automated flow simulations. You can use the services provided if you are an adult or at least eighteen (18) years old. An order must be placed in English.

1.2 Ordering process

The ordering process of the simulation project happens as follows:

1. you first choose one of the simulations that is needed for your design process (Basic/Regular/Advanced);
2. you upload the 3D model you would like to be shaped by AirShaper;
3. you enter the simulation parameters;
4. you check the project summary and the order options;
5. you choose the payment manner and confirm the order and execute the payment. (Before paying, you have the possibility to go back in the process (clicking on “step 2 | Setup”) if you see that a mistake has been made and you would like to modify it.)

The order is placed when the payment has been executed.

You must ensure that the information you submit in your order is accurate and complete before paying it, because afterwards it is impossible to make any modification.

When you place an order, you accept AirShaper’s offer for a virtual wind tunnel test. After you have placed an order, AirShaper will send you an automatic email confirming your order details. This confirmation means that a binding Service Agreement will exist between the Parties.

AirShaper recommends that you keep a printed copy of that Agreement as well as a copy of the order confirmation and invoice, since AirShaper will not archive the Agreement that is applicable to you and you can not access that particular version of the Agreement anymore in case the Agreement for future use would be changed by AirShaper (see: The Agreement).

1.3 Price and Payment

The price to use the AirShaper Service is a fee based on the simulation or subscription plan you choose. The price contains the cost for the services rendered by AirShaper, as well as taxes when applicable. The price is calculated in EUR or USD depending on your location.

You have to pay the price at the time you place your order. If you fail to pay then, there is no Agreement and your order isn’t placed.

1.4 Term of delivery

AirShaper will deliver the report and the simulation data within a reasonable time. The benchmark for this reasonable time will be the indicative period of three (3) weeks. The report (in pdf-file) will be sent by mail. From then on the simulation data will be available on the Site during thirty (30) calendar days. The average time required to analyze the 3D-model depends on the simulation type that you choose (Basic/Regular/Advanced), the analysis is normally done within three (3) weeks, but this is merely an indication by which AirShaper is not bound. Also, the timing given by AirShaper, orally or written, before or during the execution of the Service, is merely an indication by which AirShaper is not bound, unless stated otherwise. In case the delivery takes longer due to force majeure, a small error, such as a technical one, of AirShaper or in case that the delivery is only minimally delayed, AirShaper cannot be held liable.

In other situations of delay, AirShaper’s liability will be maximum the amount AirShaper received from the client for the project which endures the delay. The actual delivery time is determined by a number of circumstances, for example (but not limited to) the working conditions applicable at the time the agreement is concluded and the size and difficulty of your 3D-model.

1.5 Limitation of liability

1.5.1 Accuracy level

AirShaper provides a service which consists of different types of aerodynamic simulations. These simulations are based on a ‘virtual wind tunnel test’ and not a ‘physical wind tunnel test’. It is only possible to get a result which corresponds exactly to reality by undergoing a physical wind tunnel test. For safety reasons AirShapers requires you to do an additional physical wind tunnel test before undertaking any other steps based on the information from the report. Therefore, with the virtual wind tunnel test, AirShaper is only committed to an obligation of means.

The first simulation, which is called ‘basic’, is provided for basic shapes/design. The goal of this simulation is to give the main aspects about the aerodynamics of your shape/design. The accuracy is order-of-magnitude.

The second simulation is called ‘regular’, which is a simulation for the more advanced or detailed shapes/designs. The goal of this simulation is to capture the smaller features allowing you to make more accurate design decisions beside the main aspects about the aerodynamics of your shape/design. The accuracy is intermediate, so it is more than an order-of-magnitude.

The third simulation is called ‘advanced’, which is a simulation for pre-production models. The goal of this simulation is to provide you with the highest resolution available and final details about the aerodynamics of your shape/design. The accuracy is high.

The level of accuracy in the three simulations like ‘order-of-magnitude’, ‘intermediate’ or ‘high’ must be interpreted in comparison with the results provided by a physical wind tunnel test. This means that the results from the advanced simulation are reflecting a level of accuracy that is closer to the level of accuracy under the physical wind tunnel test than the regular simulation and even more than the concept simulation.

1.5.2 Correctness of the data

AirShaper cannot be held liable for the results of the simulation if the data provided to AirShaper to launch the simulation were wrong. In other words, AirShaper is not responsible for the correctness, accuracy and integrity of the data you put in the AirShaper simulation. AirShaper can also not be held liable if the 3D-model which is inserted by you, does not comply with the specifications given on the website under 3D-model guidelines during the ordering process.

1.5.3 Liability for advice

AirShaper is in no way responsible for the correctness, completeness or exactitude of the information or advice given before the closing of the Service Agreement.

AirShaper commits itself to an obligation of means concerning the information it delivers in the report, if given, concerning the advice it gives on the interpretation of the given report and, again if given, concerning advice given on how to improve the aerodynamics of a given model.

AirShaper is not responsible for any damages resulting fromotherinaccurate, incomplete or inexact advice given during or after fulfilling its Service except in case of wilful misconduct.

1.5.4 Regarding possible damages

For non-consumers: AirShaper is in any event not liable for the material-, immaterial damages or damages directly or indirectly in relation to your use or misuse of the Service, except in the case of fraud, an act or omission committed intentionally by Airshaper. AirShaper is neither liable for the gross error made by his Servants and all acts or omissions committed by its Servants, even if these acts or omissions are committed intentionally by its Servants.

For consumers: AirShaper is in any event not liable for the material-, immaterial damages or damages directly or indirectly in relation to your use or misuse of the Service, except in the case of fraud, an act or omission committed intentionally by AirShaper or its Servants and in the case of gross error made by AirShaper or its Servants.

The mentioned damages in the preceding paragraph are implying the loss of profits, business opportunities, income, revenue, contracts, goodwill, use, time, data enjoyment, physical and psychological damages or other economic advantages and personnel- and administration costs. These examples are not exhaustive.

AirShaper will, if held liable, only compensate at a maximum rate of 200% of the price of the simulation that was used and which caused that particular damage.
A party does not have the right to make a claim for damages unless such claim is made within six (6) months from the time the damage occurred.

AirShaper makes no warranty, express or implied, and expressly disclaims any and all warranties including, without limitation, any implied warranty of title, merchantability, fitness for a particular purpose, non-infringement or other similar warranties, except as otherwise provided in this Agreement.

1.5.5 Force Majeure

AirShaper cannot be held liable in the following circumstances, which are non-exhaustive examples of situations that are beyond the reasonable control of AirShaper whenever AirShaper is prevented from fulfilling its obligations, like the delivery or the delivery in time of the aerodynamic simulation report: war, fire, flood, strike or other labor disturbance, acts of any governmental body, explosion, power shortage, …

The overall conditions of force majeure under ordinary law are applicable in order to determine if the notion ‘a circumstance beyond reasonable control’ is fulfilled.

AirShaper will automatically be exempted from its obligations whenever the force majeur is of a lasting nature.

1.5.6 Hardship clause

The conditions of the Agreement will be reviewed by the Parties whenever the equilibrium of the Agreement is fundamentally changed because of an event for which no party is responsible and which couldn’t have been reasonably foreseen at the time of the conclusion of the agreement. The equilibrium of the Agreement is fundamentally changed whenever the Parties are placed in a greatly disadvantageous position towards the other in function of its contractual obligations.

1.6 Terms and Termination

1.6.1 Right of withdrawal

For consumers(pursuant to article VI. 53, 13° WER): When you agree with the terms and conditions, you agree that the Service by AirShaper may be executed within fourteen (14) calendar days and that you lose your right of withdrawal from the moment that you place your order. This waiver of right of withdrawal will be confirmed in the automatic email that AirShapers sends you to confirm your order.

For non-consumers: As the report is made immediately on the basis of your specifications, there is no right to return the report nor possibility for cancelling your order.

Upon delivery of the report, AirShaper expects you to submit the report to a thorough inspection. If, upon inspection, you feel that the report is not in conformity with the order, you should contact AirShaper as soon as possible and at the latest fourteen (14) calendar days after your receipt of the report. In case that you omit to exercise this control or decide to use a non-conform report, you dismiss AirShaper from any liability for the possible consequences of the usage of this report.

AirShaper reserves the right to revoke (part of) an order for technical reasons. In such case AirShaper will inform you of this technical issue as soon as possible. The liability of AirShaper vis-à-vis for real and proven damage will, regardless the gravity of the failure, be limited to the price of the Service. All other liability of AirShaper, such as that for consequential loss, other indirect loss and loss as a result of third party liability, is excluded.

1.6.2 Termination of the Service Agreement

The Service Agreement terminates when the report is delivered. The Service Agreement may be terminated earlier, upon the mutual written agreement between the Parties.

Cancellation clauses:

1) Notwithstanding the above, AirShaper will be entitled, at its option, by written notice, to terminate the Service Agreement within a reasonable timeif there are technical reasons or issues to do so.

If the technical reasons are due to AirShaper’s fault, AirShaper will reimburse you the amount that you paid. If the technical reasons are due to a non-compliance from your part with the specifications indicated during the ordering process concerning the 3D-model (e.g. format of the 3D-model), AirShaper will not reimburse you.

2) AirShaper will also be entitled, at its option, by written notice, to terminate the Service Agreement within a reasonable time,if the order is in conflict with AirShaper’s values and ethics, such as creating firearms, their components, or any other prototype or model intended for the weapon, defence of military industry; models meant for the medical sector for which AirShaper has ethical concerns for safety or security reasons; models meant for bribery or corruption and all other illegal activities; models that AirShaper finds unreasonably harmful for the environment. In that case AirShaper will only reimburse you the amount that you paid apart from the costs already made.

If your model is in conflict with AirShaper’s values and ethics, even if your model does not fall under the specific examples listed above, then AirShaper will reimburse you the whole amount that you paid, when termination the Service Agreement.

3) Notwithstanding the above, AirShaper will be entitled, at its option, by written notice, to terminate the Service Agreement within a reasonable time,if you are not the owner nor have obtained from a third party the rights necessary for submitting this order to AirShaper without any violation of any intellectual property rights(see section about Intellectual Property Rights and Policy). AirShaper will not reimburse you.

Upon termination of the Service Agreement, at any time and for any reason or no reason, all rights granted to you under this Agreement shall promptly cease, except the terms that by their nature or context are intended to survive (f.e. the confidentiality), shall so survive the expiration or termination of this Service Agreement.

Please see ‘7. The Account’ in the Privacy Policy (https://airshaper.com/privacy.html) for more information on your Personal Data if you cancel your account.

The simulation data you receive together with the report, will still be available on the Site but only during thirty (30) days. Your 3D-model, the original calculation settings and the report will still be available after those thirty (30) days, until your account is cancelled.

2. The Site

2.1 Terms of use of the Site

This Site is the property of AirShaper.

By accessing and using the Site you express your explicit agreement with the following general terms and conditions. AirShaper reserves the right to alter or delete material from the Site at any time, and AirShaper may, at any time, revise the terms and conditions, the legal disclaimer or other policies set forth in this Site by updating it. Such modifications shall be deemed effective immediately upon posting on AirShaper’s Site. Any continued use of the Site shall be deemed conclusive of your acceptance of the modified terms and conditions, the legal disclaimer of AirShaper and other policies.

2.2 Information on the Site

The Site is only available in English.

The information specified on this Site is only intended for general information purposes. The information provided on this Site may not be considered as legal nor other professional advice. Accordingly no actions should be taken based on this information without prior expert advice.

Due to the changing nature of laws and regulations and the intrinsic risks of electronic communication, there may be delays, defects or other inconsistencies in the information provided on this Site.

Although AirShaper aspires to the greatest precision possible in the compilation and maintenance of the information provided on this Site, AirShaper cannot guarantee that this information is exact, complete and correct. AirShaper further assumes no liability or responsibility for any errors or omissions in the content of the Site.

The use of the Site is at your own risk. Neither AirShaper nor any other party involved in creating, producing or delivering the Site is liable for any direct, incidental, consequential, indirect or punitive damages arising out of your access to, or use of, or browsing in the Site. This includes damages to, or arising out of viruses that may infect, your computer equipment or other property. AirShaper makes no representations or warranties regarding the condition or functionality of this Site, its suitability for use, or that this web service will be uninterrupted or error-free. AirShaper takes the necessary technical and organisational precautions adapted to the given risks as to protect Personal Data in accordance with GDPR.

Internet communications are capable of data corruption and therefore AirShaper does not accept any responsibility for changes made to such communications after their dispatch. It may therefore be inappropriate to rely on information/advice contained in an email without obtaining written confirmation of it. AirShaper does not accept responsibility for any errors or problems that may arise through the use of Internet communication and all risks connected with sending commercially sensitive information relating to your business are borne by you. If you do not agree to accept this risk, you should notify AirShaper in writing that email is not an acceptable means of communication. AirShaper takes the necessary technical and organisational precautions adapted to the given risks as to protect Personal Data in accordance with GDPR.

Without limiting the foregoing, everything on the Site is provided to you "AS IS" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose or non-infringement.

2.3 Information or content from the Site

You acknowledge that electronic communications, databases and websites are subject to errors, malfunctions, tampering and break-ins, or that use thereof may result in damages to your systems or operations. While AirShaper will implement reasonable precautions to attempt to prevent such occurrences, you further acknowledge that AirShaper does not guarantee that such events will not take place. AirShaper will not be liable for any such occurrences.

You shall be solely responsible for ensuring that any information or content downloaded from the Site or any other website accessed from the Site does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage its systems, software or data, and you shall indemnify, defend and hold AirShaper harmless from any liability, claim, cost or damage arising out of any third-party claim or suit caused by such virus or code or subroutine.

2.4 Your account

When making an account (by ticking a box) you consent to the processing of Personal Data. For more information see:https://airshaper.com/privacy.html.

In case you work with the AirShaper Service you need to use an account, which will be protected by a password. You are responsible for maintaining the confidentiality of your account password, and you are responsible for all actions that are done under your account. You will immediately inform AirShaper in case of unauthorized use of your account. AirShaper cannot and will not be liable for any loss or damage, arising from your failure to protect your account and/or your password.

You are solely responsible for 1) providing true, accurate, current and complete information about you in your account information and 2) maintaining and promptly updating account information to maintain its accuracy, currency and completeness.

2.5 Use of "cookies"

For AirShaper’s Cookies Policy, consulthttps://airshaper.com/privacy.html.

2.6 Adaptation of the Agreement

You will be entitled, at your option, by written notice, to terminate the Agreement within fourteen (14) calendar days after receiving a notification of AirShaper of modifications of the Agreement by posting a notification on the Site, by email or any other reasonable medium,if AirShaper has made modifications to its Agreement and you do not agree with those modifications. This possibility to terminate applies only for the use of the Site, since the Agreement does not change Service Agreements in progress (see: Agreement).

3. Other – General

3.1 Governing Law and Jurisdiction

The service AirShaper delivers and these terms shall be governed by and construed exclusively under the laws of Belgium. All disputes will be submitted to the exclusive jurisdiction of the Courts of Antwerp (Antwerp division).

3.2 Intellectual Property Rights and Policy

3.2.1 IP of the Service

AirShaper provides an automated internet-based service to users, which they use to check the aerodynamics of 3D-models. By submitting an order to AirShaper, you confirm that you are the owner and/or that you have obtained from a third party the rights necessary for submitting this order to AirShaper without any violation of any intellectual property rights (including among others copyright, trademark, design and model, patent, trade dress and right of publicity, etc.).

You are solely responsible for the content that you upload on the site. AirShaper will not claim any rights on your design. If the design you submit to AirShaper risks infringing the intellectual property rights of third parties, AirShaper reserves the right to either not test the design or test the design without the part that risks infringing the rights of third parties. Should your user generated content nevertheless be found to be infringing and/or in violation of any law, you will defend AirShaper against third party claims, and be held liable for all (direct and indirect) damages and costs incurred by AirShaper with respect to such claims.

AirShaper encourages intellectual property rights owners to contact AirShaper if they believe that a user of the AirShaper Service has infringed their rights. For this reason, if you let AirShaper know that your rights are being infringed by one of the AirShaper users, AirShaper will verify your claim and will (at its own discretion) require that the user's content is removed from products and, if the user continues to infringe your rights (or infringes the rights of others), terminate the user's access to the AirShaper Services, without reimbursing that user (See: Terms and Termination).

The software that AirShaper uses to deliver its Service is the intellectual property of AirShaper or is used rightfully by AirShaper. The 3D-model that is sent to AirShaper is assumed to be your intellectual property. The result of the simulation (report) is your intellectual property to the extent that it’s based on your data-input, other elements like e.g. the layout and logos remain the intellectual property of AirShaper.

You will compensate all damages that AirShaper has undergone because of the fact that you used a 3D-model whose ownership belongs to someone else or if you did not receive the necessary rights from the owner of the 3D-model to submit an order to AirShaper. You will pay all damages and AirShaper will not reimburse you the price you have paid to launch the stimulation.

3.2.2 IP of the Site

AirShaper and third parties, as agreed by AirShaper, retain all ownership and intellectual property rights to the Site. You may not cause or permit reverse engineering, disassembly or decompile the Site.

The Site contains names, which are trademarks and/or brand names of AirShaper. These marks and other AirShaper brand names may not be used without the written permission of AirShaper. The copyright in the content of the Site is owned by AirShaper or other third parties. No part of the Site may be copied or reproduced for commercial purposes without the express written permission of AirShaper or the identified owner of the information and content.

All the trademarks used on the Site are the property of their respective holders.

The Site and its content is protected by copyright and other intellectual property rights. You may print the texts for private use; they may only be distributed with AirShaper's consent. You may quote them (without any modification) provided that you always refer to the authentic source. You may reproduce a part of them provided that you always refer to the authentic source, except for commercial purposes, in which case reproduction, even with specification of the source, is not allowed without AirShaper’s express consent.

You are prohibited from altering, damaging or defacing the Site or adding any unauthorized material or to attempt to alter, damage or deface the Site or add any unauthorized material.

3.3 Confidentiality

Without prejudice to a Non-Disclosure Agreement, which will prevail over the Agreement, the Parties agree that the Agreement and other information which may include certain portions of the Service are confidential.

Confidential information is all the information, documents and models exchanged between the two parties, regardless of the manner (written or oral), regardless the type of information or documents and regardless of the fact that this information or those documents are labelled as confidential or not.

Such confidential information and documents may include, but are not limited to: investment projects, investment policy, trade secrets, accountancy, the work- and production methods, customer lists, together with every industrial, commercial, financial and/or administrative information, reports, simulation data and accounts, the 3D-model, the chosen simulation, the price, the parameters of the simulation, and other business details, concepts, advice, etc.

The Confidential information shall be treated as confidential for all purposes and shall not be disclosed to any third party for three (3) years since the first availability of confidential information, except:

1. to a party’s consultants or independent contractors under the same confidentiality obligation as resting on the Parties; or
2. as required by law (and only following written notice to the other party); or
3. upon the prior written consent of the other party.

The party that receives the confidential information can only announce it to its staff on a ‘need to know’-basis, and that same party guarantees that its staff maintains the confidentiality. The confidentiality obligation does not apply to information that a party can demonstrate:

1. is publicly known or reasonably ascertainable by others;
2. was known by the party before the Agreement, so without any obligation from that Agreement;
3. is rightfully obtained by a third party without breach by that third party of the confidentiality obligations in this Agreement;
4. or is independently developed by a partywithout useor benefit of or reference to the confidential information.

3.4 Data Protection and Privacy

AirShaper will take the necessary technical and organisational precautions and measures as imposed by the GDPR to protect the private data.

For further information, please consult the Privacy Policy (https://airshaper.com/privacy.html).

3.5 Warranty

AirShaper makes no warranty other than those made expressly in these terms and conditions to the fullest extent permitted by law. AirShaper hereby expressly disclaims any representations or warranties of any kind, expressed or implied, including without limitation warranties of merchantability and fitness for any particular purpose.

3.6 No waiver

No omission or delay on the part of any party to insist on strict performance of any terms, or in exercising any right, power or remedy under these terms, shall operate as a waiver thereof, nor shall any single or partial exercise by any party of any right, power or remedy preclude the further or other exercise thereof or the exercise of any other right, power or remedy. Without limitation, no waiver by any party of any breach of any provision of these terms shall be a waiver of any subsequent breach of that or any other term.

3.7 Severability

If all or any part of one or more of these terms is or becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation or found to be illegal or unenforceable in whole or in part under any applicable law, or regulation, or with respect to a certain category of persons, such provision or part shall to that extent, be deemed not to form part of the contract. The legality, validity or enforceability of the remainder of these terms or the remaining parts of the relevant term shall not in any way be affected or impaired thereby (in relation to such category of persons). The legality, validity or enforceability of such provision under the applicable laws of any other category of persons, shall not in any way be affected or impaired.

If any part of this disclaimer is held to be invalid, the remaining terms will continue to be valid and enforceable. The parties will negotiate in good faith to replace such (partial) invalid or unenforceable terms by enforceable and legally valid terms that are as tight-fitting as possible to the goal and the meaning of the former term.