Terms & Conditions
Proxima Solutions GmbH (“Service Provider”) is a company based in Germany, specialized in the development and operation of software tools, including Wind-Log, a remote monitoring and performance assessment tool for use in wind power generation equipment and related applications. The Wind-Log tool (“Wind-Log”) is a software as a service (“SaaS”) tool generated and distributed worldwide by the Service Provider and is intended for monitoring wind parks. It essentially consists of a server that receives mainly measurement data from the wind park, stores it in a database, processes it further and visualizes it. Such server can be accessed via web browser or by a mobile client (for Android and iOS). The Service Provider operates the server access and the server functions and makes it available for its customers.
1.1. Start Date of the Services
Date when the access credentials are handed over to the Customer which date shall be communicated as Start Date via e-mail to the Customer or which, if no such Start Date is communicated, is the first date on which Integrated Data is accessible via Wind-Log for the Customer.
Shall mean any company or legal entity which (a) controls either directly or indirectly a Party, or (b) which is controlled directly or indirectly by such Party, or (c) is directly or indirectly controlled by a company or entity, which directly or indirectly controls such Party. “Control” means (i) in case of the Customer the right to exercise 50% or more of the voting rights in the appointment of the directors of such company and (ii) in case of the Service Provider the right to exercise 10% or more of the voting rights in the appointment of the directors of such company.
1.3. Confidential Information
Any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Contract pertaining to relevant business information of the respective party. The Service Provider’s Confidential Information includes any Intellectual Property owned by the Service Provider (or its licensors), including the Wind-Log.
1.4. Customer Data
Means all data, information and content provided by Customer to the Service Provider for use in connection with the Services, including, without limitation, Customer applications, data files, and graphics.
1.5. Integrated Data
All data (including such from the Wind Park), content, and information (including Personal Information) owned, held, used or created by or on behalf of the Customer which are added and stored in the tool.
1.6. Intellectual Property or Intellectual Property Rights
Includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, Confidential Information, know-how, algorithms and all other rights resulting from intellectual activity. Intellectual Property includes any enhancement, modification or derivative work of the Intellectual Property.
Parties are the Customer and the Service Provider.
1.7. Permitted Users
Those personnel of the Customer or its Affiliates or of specific third parties who are authorised by the Customer/the Permitted Admin User under the Contract to access and use the Services on the Customer’s behalf in accordance with Clause 6.
1.8. Permitted Admin User
Those personnel of the Customer or its Affiliates or of specific third parties who are authorised by the Customer to create accounts and access rights for all Permitted User(s) of the Customer or its Affiliate(s) or specific third parties in accordance with Clause 6.
1.9. SaaS Service/s or SaaS
The SaaS (Software as a Service) is the connection of the Customer’s wind parks to the Wind-Log platform for remote monitoring and performance assessment and as further described in the Scope of SaaS Services in the Order Confirmation.
1.10. Scope of Services as defined in the Order Confirmation
1.11. Services the SaaS Service and any Related Services
1.12. Specific Third Parties
Are exclusively those contractually involved or contractually employed by the Customer with the surveillance and or operation and or maintenance of the wind park(s) under the scope of the Contract.
1.13. Related Services
Any services which are performed in connection with the SaaS Services or which are performed with respect to the performance of those SaaS Services and which may be outlined in the Order Confirmation specifically without derogating from the general definition as given herein.
2. Scope and Conclusion+
2.1. These General Terms and Conditions for the use of the Wind-Log Monitoring System (“GT&C” or “Wind-Log GT&C”) are applicable to the contractual relationship between the Service Provider and the Customer (forthwith the “Customer”) with respect to the Services provided by the Service Provider to the Customer (the “Contract”).
2.2. The Service Provider shall provide the Services to the Customer as detailed and specified in the Order Confirmation.
2.3. This Contract is applicable to Services rendered to all wind parks, which are specified in the Order Confirmation. Once the Contract has been concluded, the Parties may agree to include additional wind parks in the Scope of Services by means of contract amendments.
2.4. The Contract shall be concluded upon receipt of the Order Confirmation by the Customer. Any prior correspondence on the part of the Service Provider shall at no time be construed as legally binding and is intended merely to initiate the conclusion of the contract and, in particular, to clarify any technical queries.
2.5. In no event any general terms and conditions or other terms of whatever kind or description of the Customer shall apply and any application of such terms of the Customer is herewith expressly excluded, unless the Service Provider has agreed to them specifically and expressly in writing.
3. Integral Parts of the Contract+
3.1. The following documents shall be regarded integral parts of the Contract:
3.1.1. The Service Provider’s order confirmation (“Order Confirmation”) including:
- The S Services,
- Any particular conditions to the Contract agreed between the Parties, if any.
3.1.2. Wind-Log GT&C
4. Service Provider’s Services+
4.1. The specifications, qualities and/or characteristics of the Services as described in the Order Confirmation are contractual specifications, qualities and/or characteristics of Wind-Log (vertraglich vereinbarte Beschaffenheit) and thus, serve as the basis for the Customer’s warranty. For the avoidance of doubt, the specifications, qualities and/or characteristics as set out in the Order Confirmation shall not be regarded as guarantees or warranted characteristics (zugesicherte Eigenschaft) within the meaning of sections 443, 444 or 639 of the German Civil Code and such guarantees and / or warranted characteristics within the meaning of sections 443, 444 or 639 of the German Civil Code (BGB) are neither expressly nor implicitly agreed in the Contract.
4.2. Neither the installation of data acquisition infrastructure nor the necessary hardware installation or an API (Application Programming Interface) connection are included in the Scope of Services under this Contract.
5.1. The Service Provider represents and warrants that it will provide the Services in a professional manner consistent with general industry standards and that it will perform the Services in accordance with the description of the Scope of Services in the Order Confirmation. If the performance of the Services not in accordance with such warranty, the Service Provider shall remedy such defective performance in order to perform the Services in accordance with the Contract. If no such remedy is performed by the Service provider or he is unable to do so in an acceptable time frame, the Customer’s remedy shall be as provided in Clause 12 (Term and Termination).
5.2. The Service Provider does not warrant or guarantee that the SaaS will perform error-free or uninterrupted, or that the Service Provider will be able to correct all SaaS errors. The Customer acknowledges that the Service Provider does not control the transfer of data over communication facilities (incl. internet), and that the SaaS may be subject to limitations, delays, and other issues inherent in the use of such communication facilities.
6. Access Data and Third-Party Use+
6.1. The Customer shall receive access data (credentials) from the Service Provider in accordance with the following provisions.
6.2. The Customer shall authorise one or more of its personnel or of its Affiliate’s personnel or Specific Third Party personnel to be a Permitted Admin User, in which case the Customer will provide the Service Provider with the Permitted Admin User’s name and other information that the Service Provider reasonably requires to generate the account for each Permitted Admin User. The Customer must instruct the new Permitted Admin User to register with its own unique access credentials. The Permitted Admin User may only use his personal individual account and not transfer such account to any other personnel of the Customer, Affiliate or other third party or any Permitted User.
6.3. The Permitted Admin User will be in charge to create all necessary user accounts for the Customer’s and/or its Affiliates personnel and such of Specific Third Parties’s personnel. The Permitted Admin User will assign the roles and rights to the Permitted Users according to the Customer’s internal structure.
6.4. The Customer will be responsible for the confidentiality, security and the rightful or wrongful use of Customer’s (including its employees’/Permitted Users’) passwords and user names and any consequences of such use. The Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under any Customer’s account or Permitted User account.
6.5. The Customer will ensure and is liable thereto that any use of the Services by the Permitted Users is in accordance with the terms of these GT&C and the Contract as agreed.
6.6. The Customer agrees to notify the Service Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Integrated Data or other Customer Data. No one other than the Permitted User or the Permitted Admin User shall have any access rights. Only for the avoidance of doubt, the Customer is responsible and liable thereto in case of any of its or any Affiliate’s personnel or a Specific Third Party personnel providing incorrect identity information to gain access to or use the Services.
7. Usage Rights+
7.1 The Service Provider shall grant the Customer non-exclusive usage and/or access rights (hereinafter “usage rights”) to SaaS as defined in the Scope of Services in the following manner:
- The usage rights granted to the Customer are non-transferable and shall not entitle the Customer to grant further usage rights to third Parties.
- The usage rights shall be limited in time to the term of the Contract, expiring with immediate effect at the expiry of the Contract and/or the end of the Contract after termination by either party.
8. Delivery of measurement data after expiration of the Contract+
8.1. After expiration of the Contract, the Service Provider shall store the wind park measurement data (forthwith “Measurement Data”) free of charge on its systems for a period of six months. After expiry of this period, the Measurement Data may be deleted. The Customer may ask the Service Provider within this six month for the hand-over of a copy of such data at reasonable cost.
8.2. If the Customer is not the owner of Wind Park (“Owner”), the Service Provider has the right to make all wind park data, such as [production-, measurement-, environmental data, etc.] (Forthwith the “Wind Park Data”), available to the Owner of the respective wind park upon expiration of the Contract. The Service Provider shall have the right to make the Measurement Data available to the Owner if the Owner provides evidence to the Service Provider that he is the Owner. The Customer acknowledges that the Service Provider is not responsible for the veracity of such evidence documents, provided the Service Provider uses reasonable judgment. The Customer acknowledges and agrees to such handover of Measurement Data to the Owner by the Service Provider.
9. Scope of the Technical Support+
9.1. The Service Provider shall render technical support services for the Customer. The details of such support are set out further under site www.wind-log.com.
9.2. The Service Provider shall only answer support enquiries by the Permitted Users or the Permitted Admin Users.
10. Technical availability, maintenance window+
10.1. The Service Provider shall be responsible for providing the availability of the SaaS Service and the Wind Park Data after the point of transfer (the point where the Measurement Data of the Wind Park reach the server of the Service Provider). The Parties understand availability to be the technical usability of the SaaS Service and the Wind Park Data after the point of transfer.
10.2. Subject to Clause 10.4, the Service Provider will use reasonable efforts to make the SaaS Service available. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure or other impediment, hindrance or constraint or the like for whatever reason. The Service Provider will use reasonable efforts to publish details of any unavailability at the login screen or on its website [www.wind-log.com ] advance.
10.3. The SaaS Service interoperates with a range of third party service features (e.g. weather forecast). The Service Provider does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Service Provider may cease to make available that feature to the Customer. To avoid doubt, if the Service Provider exercises its right to cease the availability of a third party feature, the Customer is not entitled to any refund, discount or other compensation. In case of a permanent unavailability of such feature (meaning a time exceeding three months continuous unavailability), the Parties shall renegotiate the terms of the Contract.
10.4. The Service Provider might, from time to time, at its sole discretion, develop and implement software upgrades to make the Wind-Log software more performant and/or reliable. With the conclusion of the Contract, the Customer authorizes the Service Provider to implement the needed software upgrades. For avoidance of doubts, the Customer shall not pay for software upgrades as long as they do not extend the Scope of Services as defined in the Order Confirmation.
11. Technical Support+
11.1. The Customer shall incur no separate remuneration for technical support services.
11.2. The Service Provider shall not be required to process support enquiries beyond the Scope of Services or topics as set out in the Scope of Services. In case such enquiries are nevertheless processed, they shall be regarded as an additional service, which is remunerated according to the expenditure of time. There shall be no formal order and order confirmation for the request of additional services, these may be requested and answered to by email to the contact address or person as indicated in the Order Confirmation.
12. Terms and Termination+
12.1. The contract is concluded for an indefinite period of time. Neither party shall however be able to terminate the Contract for a period of two years from the Start Date, subject however to Clause 12.4.
12.2. Either party shall be able to terminate the contract with a three months’ notice prior to the expiry of such two year period for the first time. Afterwards, the contract may be terminated by either party by the end of every quarter of the calendar year (end of March, June, September and December). In every case of a termination, a three-month notice must be observed.
12.4. The right to terminate for good cause with immediate effect at any time after the Start Date (Kündigung aus wichtigem Grund according to section 314 BGB) shall remain unaffected by the above-mentioned regulations. In particular, the Service Provider shall also have the right to terminate for good cause with immediate effect at any time after the Start Date, if the Customer is more than one month in delay with its contractual obligation to pay the invoiced remuneration (delay of one month after issuance of the invoice).
12.5. Termination shall be effective only if in writing, which shall include notice by e-mail.
13.1. Fees and Invoicing
- The prices are specified in the quotation.
- The first invoicable period will be the first calendar month after the Start Date.
- Invoicing will take place quarterly in advance.
- Invoices from the Service Provider shall be due payable within 45 calendar days after receipt.
- Fees shall be owed plus the VAT in the respectively valid statutory amount.
After a period of 2 (two) month and at least one reminder in writing the Service Provider shall be entitled to shut down the services for the specific park or portfolio until the overdue amount is paid. The Service Provider may charge interest on overdue amounts. Interest will be calculated 5% per annum. Additional administration costs will apply.
13.3. Additional Services
The Permitted Admin User may purchase additional services under this Contract for the agreed price without the exchange of quote, order and Order Confirmation with exchange per e-mail. In such case these GT&C are applicable even without specific reference.
13.4. Price adjustment
After 24 months, counted from Start Date, the provider may increase Fees every year by the percentage change in the Consumer Price Index of Euro Area (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Eurostat of European Community prior to the date of the notice.
14. Limitation of Liability+
14.1. The Service Provider shall be liable without limitation
- in the event of gross negligence (grobe Fahrlässigkeit) or intent (Vorsatz) or for loss of life, physical injury and damage to body or health and
- in accordance with the provisions of the Product Liability Act and
- to the extent of a guarantee assumed by the Service Provider (if any).
14.2. In case of slight negligence (einfache Fahrlässigkeit), the Service Provider shall only be liable violations of a major contractual obligation (Kardinalpflichten), the fulfilment of which specifically enables the proper execution of the contract and on the observation of which the Customer regularly relies and may rely. In such case, the liability of the Service Provider is limited to the amount of damage that is foreseeable and typical of the type of business in question.
14.3. The Service Provider has no further liability. In particular, there is no liability on the part of the licensor for initial defects, unless the conditions of Clause 14.1 and 14.2 are fulfilled.
14.4. For the avoidance of doubt, the Service Provider shall not be liable for any lack of economic success, loss of profits, indirect and other consequential damages or claims by Third-Parties with the exception of claims arising from the violation of Third-Party property rights, unless the conditions of Clause 14.1 and 14.2 are fulfilled.
14.5. The above limitation of liability also applies to the personal liability of the employees, representatives and organs of the Service Provider.
14.6. The compensation amount for damages pursuant to Clause 14.2 above and the reimbursement for wasted expenditure shall be limited to twice the annual remuneration for the use of Wind-Log that is specified in the order confirmation.
14.7. For the avoidance of doubt, the Service Provider excludes any liability at/after the point of transfer for the manner of use of the Services or the consequences of the use of the Services by the Customer, may such use be proper or improper, usual or unusual or may it be according to the purpose of the Services or outside of such purposes. The responsibility for the use of the Services is thus entirely on the Customer after such transfer point.
15. Contractual Penalty+
15.1. The Customer shall pay the Service Provider a contractual penalty of 10,000.00 EUR if
- The Customer violates its obligation arising from Clause 6.5 or 6.6; or
- The Customer uses the system to store or process contents, the possessing, processing or storing of which are punishable by imprisonment of three years or more according to German Criminal Law.
15.2. Should a violation of the Customer obligations under Clause 6.5 or 6.6 necessarily also be a violation of the same clause 6 under the contract for another wind park with the same Customer and/or result in a violation of such obligation under the Contracts for all wind parks with the Customer, then the contractual penalty is explicitly due for each of those contracts. Should there be a continued violation, then each day of such violation, shall count as one penalty incident.
16. Integrated Data+
16.1. Customer rights of Integrated Data
Insofar and to the extent that Integrated Data are created during the term of the Contract through activities by the Customer, in particular through the compilation of Measurement Data, then the Customer shall be entitled to all rights to the newly created Integrated Data, provided that these activities were in accordance with the Contract.
16.2. Service Provider access to Integrated Data
- The Customer acknowledges that:
- the Service Provider may require access to the Integrated Data to exercise its rights and perform its obligations under the Contract; and
- to the extent that this is necessary but subject to Clause 7, the Service Provider may authorise a member or members of its personnel or a third party involved in the performance of the Services (for example a consultant) to access the Integrated Data for this purpose.
- In particular, the Customer understands that the technical processing and transmission of Customer’s electronic communications by the Service Provider, is fundamentally necessary to the Customer’s use of the Services. The Customer expressly consents to the Service Provider’s interception and storage of electronic communications and/or Integrated Data, and Customer acknowledges and understands that Customer’s electronic communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by the Service Provider.
- As long as the Service Provider acts as a reasonable and prudent operator the Customer acknowledges and understands that changes to the Customer’s electronic communications may occur in order to conform and adapt all data to the technical requirements of connecting networks or devices. The Customer further understands that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. The Customer agrees that the Service Provider is not responsible for any electronic communications and/or any data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by the Service Provider.
- The Customer hereby acknowledges and agrees that the Service Provider’s performance of the Contract may require the Service Provider to process, transmit or store personal information of the Customer’s Permitted Users and Permitted Admin Users. By submitting personal information to Service Provider, the Customer agrees that the Service Provider and its Affiliates have the right to process, transmit and/or store Customer personal data or the personal data of Customer’s Permitted Users and Permitted Admin Users to the extent necessary for enabling the Service Provider to perform its obligations under this Contract.
- The Service Provider will be responsible as sole data controller for complying with all applicable data protection laws and in particular any EU Directive or any laws implementing EU Directives that regulate the processing of personal data and special categories of data as such terms are defined in these EU Directives.
- The Customer shall arrange all consents and approvals that are necessary for the Service Provider to access any data (including Integrated Data) which the Customer provides. The Customer confirms that the Customer is solely responsible for any personal information that may be contained in Customer Data or Integrated Data, including any information which any SaaS Services user or Permitted User shares with third parties on Customer behalf.
- Wind-Log is a software platform, which ensures the cross-fertilization of know-how and experience among third party users of the Services or other Wind-Log users. The Customer acknowledges this and agrees that Measurement Data are processed according to Clause 16.3 (Anonymised Analytic Data). The Customer authorizes herewith the Service Provider to do so.
- The Customer agrees that the Service Provider may store Integrated Data in secure servers in a country that is not the country of the Customer or in cloud solutions.
16.3. Anonymised Analytic Data
- The Customer acknowledges and agrees that the Service Provider may:
- Use Data and information about the Customer’s assets to generate anonymised and statistical aggregated data (“Anonymised Analytic Data “); and
- Use Anonymised Analytic Data for the Service Provider’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
- Supply Anonymised Analytic Data in anonymised form to the Customer and third parties.
- The Service Provider’s rights to Anonymised Analytic Data will survive termination or expiry of the Contract. Title to, and all Intellectual Property Rights in, Anonymised Analytic Data is and remains the Service Provider’s property.
- The Customer acknowledges that:
17. Non-Disclosure of Other Confidential Information+
17.1. The Parties shall not disclose Confidential Information to Third Parties. Exceptions apply where this contract permits disclosure and in case of involvement of consultants and the like being subject themselves to similar obligations of confidentiality, provided that their involvement is necessary for the purposes of the Contract. In particular, this exception also applies to delivering Measurement Data pursuant to Clause 8, for access by third parties arranged by the Customer pursuant to Clause 6 and to the use of subcontractors pursuant to Clause 17.
17.2. The Service Provider may disclose Confidential Information to Group Companies and/or Affiliates.
17.3. The Parties shall take appropriate measures to protect the Confidential Information.
17.4. The confidentiality obligations set forth in this contract shall only apply to the present contractual relationship. Other confidentiality agreements between the Parties shall remain unaffected.
18. Final Provisions+
18.1. The obligations according to Clauses 16, 17 and 18 shall survive the termination or expiration of the Contract.
18.2. The Customer may only Offset claims in case of undisputed or final (rechtskräftig) claims against the Provider.
18.3. The Provider shall have the right to change and/or amend these GT&C with future effect.
18.4. The Provider may amend or change the modules for development and enhancement of the Services at its own discretion. The main contractual obligations of both Parties shall not be affected by these changes. The Customer shall accept such module changes. The Customer has the right to terminate the Contract in accordance with Clause 12 (Termination Clause) in case that major module changes are undertaken by the Service Provider which substantially alter the nature of the module. The Service Provider shall notify the Customer in advance in text form concerning mayor changes or amendments.
18.5. The Customer shall indemnify the Service Provider against all claims asserted by Third-Parties alleging that their rights have been violated if this allegation is based on a use of Wind-Log by the Customer that constitutes a violation of the contract. In particular, this shall apply to alleged claims involving data protection and copyrights along with any judicial or extrajudicial costs incurred for conducting legal disputes. If the Customer realises or should realise that such a violation might occur, it shall be under the obligation to inform the Service Provider of this without any delay.
18.6. The Customer shall be prohibited from assigning its rights arising from this contract, except where written consent of the Provider is given. This specifically applies to its rights to use Wind-Log.
18.7. If a Clause of this contract should become void, ineffective or unenforceable, whether as a whole or in part, under applicable or future law, this shall not affect the validity of the remaining provisions of this contract. The Parties shall amicably replace any void, ineffective or unenforceable Clauses with such Clauses that most closely correspond to the economic intent of the void, ineffective or unenforceable Clauses.
18.8. Changes or amendments to the Contract must be in writing in order to be effective. This also applies to the modification or cancellation of this Clause 19.
18.9. The Parties are aware that the Wind-Log may be subject to export and import restrictions. In particular, there may be approval requirements or the use of the software or related technologies may be restricted abroad. The Customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfillment of the contract by the Service Provider is subject to the condition that there are no obstacles due to national and international regulations of export and import law as well as no other legal regulations.
18.10. German law shall apply exclusively to the Contract, excluding conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention).
18.11. The exclusive place of jurisdiction shall be Berlin.