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Terms & Conditions of Windfinder.com GmbH & Co. KG

Version: 2014-07-07

Dear user, we would like to thank you for your interest in the services of Windfinder.com GmbH & Co. KG. To protect your interests as a user and our interests as service provider these terms and conditions shall apply. Please read them carefully before using our services. If you have any questions or anything is unclear, please contact us. As our general terms and conditions are very extensive, we have provided a table of contents ahead:

Klauseln zum Verhältnis deutschen und englischen Textes

Dieser Text unterliegt deutschem Recht und soll nach deutschem Rechtsverständnis ausgelegt werden. Er wird in deutscher und englischer Sprache ausgefertigt. Im Falle von Abweichungen zwischen der deutschen und der englischen Fassung hat die deutsche Fassung Vorrang.

This text shall be governed by and construed in accordance with the laws of Germany. It shall be executed in both the German and the English language. In the event of any inconsistency between the German and the English version the German version shall prevail.

Table of contents

    1. General part
      1. Scope, services, customers
        1. Our terms and conditions apply to all service offerings and resulting service contracts and the paid and free use of online features of Windfinder. By these we refer mainly to the use of data that we provide to users. These can be accessed via free services like the website www.windfinder.com, the Windfinder apps, the browser add-ons, as well as through fee-based services such as ad-free Windfinder Pro app and the SMS and e-mail services.
        2. Our terms and conditions apply exclusively and in their version valid at the time of use of our services; we do not recognize contrary terms or terms and conditions deviating from our terms and conditions, unless we have expressly agreed to their validity in writing. Our terms and conditions also apply if we unreservedly provide services aware of conflicting or deviating terms and conditions of the user.
        3. Our services are aimed at consumers and businesses alike, but only to end-users. For purposes of these terms and conditions, a consumer is any natural person who enters into the contract for a purpose which can be attributed neither to their commercial nor their independent vocational occupation (§ 13 BGB) and an "entrepreneur" means a natural or legal person or a legal partnership that at the conclusion of the contract performs commercially or self-employed (§ 14 section 1 BGB).
        4. Our terms and conditions apply both to consumers and to entrepreneurs, unless a respective clause shall make any differentiation.
      2. Language, Products, Prices
        1. The contracts with the user are concluded exclusively in German language, regardless of whether the customer makes use of our services in German or other language.
        2. Regarding the essential features as well as the validity of our services, please refer to the individual product descriptions.
        3. The presentation of our services does not constitute a binding offer or agreement.
        4. The prices quoted by us are final prices including tax and shipping (if needed) within the Federal Republic of Germany only.
        5. Any withdrawal rights are listed in a special section of these terms and conditions.
      3. Service / Changes
        1. We reserve the right to change, supplement, or delete all or any part of our range or our full range of services without separate announcement or to terminate the publication temporarily or permanently.
      4. Our data
        1. We provide access to information; in particular to weather data in the context of our services.
        2. The data are protected by copyright or ancillary copyright and trademark laws in our favor.
        3. Information about the validity and the quality of the provided weather data can be found at www.windfinder.com/help. This information must be observed before using the data to avoid erroneous application and to avoid damage. In particular, the user uses the data provided by us at his/her own risk. We are not liable for damages resulting from decisions, actions (, or inactions) of the user, based on interpretations of the data provided by us.
      5. Licences
        1. The information provided by us are intended for end users.
        2. The data may be used without our consent only for the intended use as part of the services / products offered by us.
        3. Commercial use of our data and services, such as distribution or other use for the purpose of obtaining income therefrom, is not allowed without our written consent.
        4. When publishing our data in the context of non-commercial possibilities offered by us, for example on a website, a clearly visible indication of our ownership has to take place, making note of our company name and (if possible) providing a hyperlink.
        5. It is not permitted under any circumstances to filter name and address data, as well as e-mail addresses from our services, in particular in order to use them for advertising or other measures.
        6. We reserve the right to change or terminate our services at any time for any reason (or no reason at all) without notice. Any rights cannot be inferred from the user.
    2. Use of fee-based services SMS / E-mail Service
      1. Offer, registration and personal information (and bid documents)
        1. The ordering of the text message / e-mail services and registration by the user constitutes a binding offer, which we may assume by sending an order confirmation or providing the service within one week. A right to admission to our services does not exist.
        2. The data required for the application is to be fully and truthfully provided by you. As far as the use of the services requires a login with user name and password, you must not infringe third party rights or other names and trademarks or ethics. You are required to keep the password secret and not to notify third parties in any way.
        3. As far as your personal information change, you are responsible for updating them. All changes can be made online by logging into your account.
        4. At the provision of SMS (short message service) and e-mail services the reception of messages is enabled. The user will receive an activation confirmation for the receipt of messages and a password for the customer-specific adjustment of the weather information service at www.windfinder.com.
      2. Prices and payment obligations
        1. The valid prices for the respective service at the time of ordering shall apply.
        2. When using a fee-based service, a fee is due immediately upon personal information. The user can pay by bank transfer, direct debit, credit card or PayPal. (We use the transfer method "SSL" to encrypt your personal data). The payment method stored in the user account can be changed any time.
        3. In the case of a continuing obligation relationship price changes take effect within a period of 40 days upon notification by us. In the case of price changes at the expense of the user he/she obtains the extraordinary right to terminate the contract within 30 days upon taking notice.
        4. The user is not entitled to a refund of the amounts paid as a result of non-use of the service.
        5. We expressly point out that for the reception of data via text messages or Email abroad roaming charges may apply, which are charged by the respective mobile service provider/operator of the customer.
      3. Service
        1. The provision of the service is performed according to the respective associated service descriptions.
        2. The reception of our data is possible and in the case of SMS messages only with SMS-capable mobile phones in the mobile telephone networks if the cellphone has network coverage. Accessing the data with the callback method, and thus the reception of Windfinder callback SMS messages especially abroad depends on whether the mobile service provider actually transmits the caller's number to Windfinder.
      4. Denial of service, set-off
        1. We are entitled to refuse the use of the service ordered provided that the user has not provided the due quid pro quo, especially if a direct debit for due charges is not paid or charged back. The costs of denial of service and the resumption of the service shall be borne by the user, if he/she is responsible for the denial of service.
        2. If a user uses the service in a data plan with unlimited retrieval of weather data for a fixed price, we are entitled to refuse the use of the service ordered provided that the customer requests the weather data in a regularity or frequency, which significantly exceeds the updating frequency of the weather data.
        3. In the cases referred to in 2.4.1 and 2.4.2 we are entitled, to block the user without notice and without delay for the service being used and to invoice the costs incurred by the excessive retrieval of weather data.
        4. Set-off rights of the user are acknowledged only if his counterclaims have been legally established, undisputed or acknowledged by us.
      5. Period of service
        1. If we indicate completion or execution deadlines and these have been made the basis for the service, such deadlines shall be extended in the case of strike, force majeure for the duration of the delay.
        2. If the cause of the service failure lasts longer than a week, the user has the right to terminate the contract immediately without notice.
      6. Liability for defects
        1. If the user is a consumer, we are liable for a defect according to statutory provisions, insofar as there are no restrictions from the list below. The consumer has to indicate obvious defects within two weeks after the onset of the defect in writing. If notification is not made within the above-specified period, the warranty rights expire. This does not apply if we maliciously concealed the defect or have assumed a guarantee for the nature or quality of the service.
        2. If the user is an entreprenuer in the case of defects we reserve of the choice of type of remedy. The warranty period is one year. This time limit does not apply if compensation claims due to defects are valid. In the case of claims for damages because of defiencies 2.7 applies.
        3. The user will not receive any guarantees from us in the legal sense.
      7. Liability for damage
        1. Our liability for breach of obligations and tort is limited to intent and gross negligence. This does not apply to injury to life, body and health of the user, claims according to the Product Liability Law or claims regarding breach of cardinal obligations or compensation for damage caused by delay (§ 286 BGB). In this respect we are liable for any degree of fault. In no event are we liable for any consequential damages which may be incurred by the user.
        2. The above exclusion of liability shall also apply to slightly negligent breaches of duty by our vicarious agents.
        3. Insofar as liability for damages not caused by the breach of the user's life, body or health, are not excluded for slight negligence, such claims are barred (statute of limitations) within 1 year beginning with the emergence of the claim or for damages claims due to a defect starting from the utilization of the service.
        4. As far as the liability for damages against us is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
      8. Statute of limitations of own claims
        1. Our claims for compensation are barred in 5 years notwithstanding § 195 BGB. Regarding the beginning of the period of limitation § 199 BGB is valid.
      9. Right of withdrawal
        1. Consumers are entitled to the withdrawal right normalized in paragraph 5.
    3. Purchase of the App Windfinder Pro
      1. Validity, priority
        1. For the acquisition and use of the app Windfinder Pro (software), fundamentally and primarily the terms and conditions of the respective stores (Apple App Store, Google Play, Windows Phone Marketplace, etc.) are applicable, via which the respective apps are distributed.
        2. The software can be different in any version for the supported devices and must be used solely for the intended use on the supported platform.
      2. Usage rights
        1. The user is granted a perpetual, non-exclusive right to use the software. He/she is entitled to use the software on his/her devices.
        2. The software may not be rented or loaned to third parties by the user. Existing protection mechanisms of the software against unauthorized use may not be removed or bypassed.
        3. In all other respects, in terms of usage rights, the mandatory provisions of the Copyright Law apply supplementarily.
      3. Prices and payment terms
        1. The published prices at the time of ordering are valid.
        2. Rights of set-off are available to the user only if his counterclaims have been legally established, undisputed or acknowledged by us. If the user is an entrepreneur, he is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
      4. Copyright infringements
        1. We release the user from all claims of third parties from copyright violations which we are accountable for. The user shall notify us immediately of the asserted claims of third parties. If he does not inform us of the claims made this release from claims shall expire.
        2. In the case of copyright infringements we are entitled regarding the respective service- without prejudice to any claims for damages by the user – at our own choice and at our own expense to:
          a) apply changes with the user, e.g. by updates, which while respecting his/her interestes, in order to eliminate a copyright infringement or
          b) acquire the necessary rights.
      5. Liability for defects
        1. If the customer is a consumer, we are liable for a defect according to statutory provisions, insofar as there are no restrictions from the following. The consumer has to notify us of obvious defects in writing within two weeks after the occurrence of the defect. If notification is not made within the above-specified period, the warranty rights expire. This does not apply if we maliciously concealed the defect or have assumed a guarantee for the nature or quality of the service.
        2. If the customer is an entrepreneur, in the case of defects we reserve the right of choice of type of remedy. The warranty period is one year. This time limit does not apply in the case of compensation claims due to defects. In the case of claims for damages due to a defect 4.6 applies.
        3. We are not liable in cases where the user has made changes to our software, unless these changes have no impact on the formation of the defect.
        4. The user will assist us in identifying and eliminating the defect and providing rapid access to the documents, which provide information of the circumstances of the occurrence of the defect.
        5. If an alleged defect after due inquiry is not attributable to a defect liability obligation on our part (lack of defect), the user can be charged with the services for verification and troubleshooting from us at the applicable rates of payment plus the expenses, unless the user could not have detected the lack of defect with effort and due diligence.
        6. The user will not receive any guarantees from us in the legal sense.
      6. Liability for damage
        1. Our liability for breach of obligations and tort is limited to intent and gross negligence. This does not apply to injury to life, body and health of the user, claims according to the Product Liability Law or claims regarding breach of cardinal obligations meaning such claims which arise by the nature of the contract and when violated threaten the achievement of the purpose of the contract, or compensation for damage caused by delay (§ 286 BGB). In this respect we are liable for any degree of fault. In no event are we liable for any consequential damages which may be incurred by the user.
        2. The above mentioned exclusion of liability shall also apply to slightly negligent breaches of duty by our vicarious agents.
        3. Insofar as liability for damages not caused by damage to the user's life, body or health is not excluded for slight negligence, such claims are barred (statute of limitations) within one year beginning with the occurrence of the claim or in the case of compensation claims due to a defect at the time of the delivery of the product.
        4. The liability for slight negligence is limited to the amount of foreseeable damages, which must be expected to incur typically; However, this maximum liability is limited to EUR 20.000, - per claim and a total of EUR 35.000, - from the contractual relationship.
        5. For the loss of data and / or programs, we are not liable to the extent that the damage is due to the fact that the user failed to perform data backups and thus ensure that lost data can be recovered with reasonable effort.
        6. Insofar as the liability for damages against us is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
        7. Any liability under the product liability law remains unaffected.
      7. Statute of limitations of own claims
        1. Our claims for compensation are barred in 5 years notwithstanding § 195 BGB. Regarding the beginning of the period of limitation § 199 BGB is valid.
      8. Right of withdrawal
        1. Consumers are entitled to the withdrawal right normalized in paragraph 5 .
    4. Usage of windfinder app, add-ons, widgets etc..
      1. Validity, priority
        1. For the acquisition and use of the app Windfinder., Browser Add-ons and widgets (software), fundamentally and primarily the terms and conditions of the respective stores (Apple App Store, Google Play, Windows Phone Marketplace, etc.) are applicable, via which the respective apps are distributed.
      2. Conclusion of contract
        1. The ordering of the software by the user constitutes a binding offer, which we may assume by sending an order confirmation or providing the software within 2 weeks.
        2. Previous offers by us are subject to change.
      3. Usage right
        1. The user is granted a perpetual, non-exclusive right to use the software. He/she is entitled to use the software on his/her devices.
        2. The software may not be sold, given away, rented or loaned to third parties by the user. Existing protection mechanisms of the software against unauthorized use may not be removed or bypassed.
        3. In all other respects, in terms of usage rights, the mandatory provisions of the Copyright Law apply supplementarily.
      4. Copyright infringements
        1. The provision of this software is free of charge.
      5. Prices and payment conditions
        1. We release the user from all claims of third parties from copyright violations which we are accountable for. The user shall notify us immediately of the asserted claims of third parties. If he does not inform us of the claims made this release from claims shall expire.
        2. In the case of copyright infringements we are entitled regarding the respective service - without prejudice to any claims for damages by the user – at our own choice and at our own expense
          a) by prior arrangement with the user to make changes that ensure while preserving his/her interests, that a copyright infringement no longer exists or
          b) to acquire the necessary rights for the user
      6. Liability for defects
        1. Liability for defects of this software is excluded.
        2. We do not grant any guarantees to the customer in the legal sense.
      7. Liability for damage
        1. Our liability for breach of obligations and tort is limited to intent and gross negligence. This does not apply to injury to life, body and health of the user, claims according to the Product Liability Law or claims regarding breach of cardinal obligations meaning such claims which arise by the nature of the contract and when violated threaten the achievement of the purpose of the contract, or compensation for damage caused by delay (§ 286 BGB). In this respect we are liable for any degree of fault. In no event are we liable for any consequential damages which may be incurred by the user.
        2. The above mentioned exclusion of liability shall also apply to slightly negligent breaches of duty by our vicarious agents.
        3. Insofar as liability for damages not caused by damage to the user's life, body or health is not excluded for slight negligence, such claims are barred (statute of limitations) within one year beginning with the occurrence of the claim or in the case of compensation claims due to a defect at the time the delivery of the product.
        4. The liability for slight negligence is limited to the amount of foreseeable damages, which must be expected to incur typically; However, this maximum liability is limited to EUR 20.000, - per claim and a total of EUR 35.000, - from the contractual relationship.
        5. For the loss of data and / or programs, we are not liable to the extent that the damage is due to the fact that the user failed to perform data backups and thus ensure that lost data can be recovered with reasonable effort.
        6. Insofar as the liability for damages against us is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
        7. Any liability under the product liability law remains unaffected.
      8. Right of revocation
        1. Consumers are entitled to the withdrawal right normalized in paragraph 5 .
    5. Right of withdrawal
      1. General
        1. If the statutory requirements are fulfilled, the customer has a right of withdrawal. A right of withdrawal does not exist for contracts according to § 312g section 2 BGB.
      2. Revocation instructions
        1. You may revoke your contractual declaration within 14 days without giving reasons. The revocation period is 14 days from the day on which you or a 3rd party who is appointed by you but who is not a carrier take(s) possession of the most recent product. In the case of a service contract the revocation period is 14 days starting on the day of the contract conclusion.

          To exercise your right of cancellation, you must notify us, the company

          Windfinder.com GmbH & Co. KG,

          represented by the general partner
          Windfinder.com Verwaltungsgesellschaft mbH,

          which is represented by the managing directors
          Mr Oliver König and Mr Jonas Kaufmann

          Knorrstraße 24 Hinterhaus
          24106 Kiel
          Germany

          Telefax: +49 431 / 800 86 44
          E-Mail: info@windfinder.com

          by means of a clear statement (eg, consigned by post mail, fax or email) about your decision to withdraw from this contract. You can use the attached withdrawal form which is not mandatory, however.
          In order to observe the revocation period it is sufficient for you to send the message about the right of withdrawal before the withdrawal deadline.
      3. Consequences of revocation
        1. If you withdraw from this contract, we will refund payments that we have received from you, including delivery costs (with the exception of the additional costs arising from the fact that you have chosen a type of delivery other than the least expensive offered standard delivery offered by us), immediately and at the latest within 14 days from the date on which the notice of the cancellation of the contract is received by us. For this repayment, we use the same method of payment that you used for the initial transaction, unless you explicitly agreed otherwise; in any case you will not be charged fees for this repayment.
          We may withhold the reimbursement until we have received the goods back or until you have proven that you have returned the goods, whichever is the earlier. You have to return the goods promptly and in any event not later than fourteen days from the date on which you notify us of the cancellation of this contract. The deadline is met if you send back the goods before the period of fourteen days.
          You bear the direct cost of returning the goods. You must pay for any diminished value of the goods only, if the deterioration in value is due to a non adequate treatment in order to ascertain the nature, characteristics and functioning of the goods.
          If you have requested that the service starts during the revocation period, then you have to pay us a proportionate amount which represents the share of the service, which has been delivered until the time at which you have notified us of the revocation, in relation to the total amount of the service according to the service contract.
      4. Special Notes
        1. According to § 312d Section 4 No. 2 BGB in the case of delivery of audio or video recordings or software you have no right of revocation if the delivered data carriers have been unsealed by you.
        2. Your right of cancellation expires prematurely if the contract is completely fulfilled by both parties at your explicit request before you have exercised your right of revocation.
    6. Final Provisions
      1. Form of declarations
        1. Legally relevant declarations and notifications, which the user has to make to us or a third party, must be in writing and signed by us and the user.
      2. Your Data (Privacy in general)
        1. All submitted personal data (title, name, address, date of birth, e-mail address, telephone number, fax number, bank account, credit card number), we will use only in accordance with the provisions of the German Data Protection Act.
        2. Your personal data, insofar as these are necessary for the establishment, handling or modification of a contractual relationship (inventory data), will be used exclusively for the processing of the contracts concluded between us, such as the delivery of services to the address specified by you. Any further use of your data for purposes of advertising, market research or for tailoring our services, requires your explicit consent. You have the ability to grant this approval before your order. This approval is completely voluntary and can be found on our website and revoked by you at any time.
        3. Your personal data, which are necessary to allow the use of our services and to settle payments (usage data), will initially also be used exclusively to process the contracts concluded between us. Such usage data are particularly features to identify a user, information about the beginning and end and the extent of the usage and information about the type of digital media and services used. In addition we will use such usage data for the purposes of advertising, market research or for tailoring our digital services to create usage profiles using pseudonyms. You are authorized and have the opportunity to object to this use of your data in the user account. Under no circumstances will usage profiles be merged with the corresponding data.
        4. As far as you request further information or you want to observe or revoke the expressly given consent for the use of your (inventory) information or wish to veto the use of your user data, you can also contact our support by sending an e-mail address to info@windfinder.com.
        5. Additional information on data policy regarding the use of the relevant services will be described separately in the context of these services.
      3. Place of performance, Applicable law, Place of jurisdiction.
        1. Unless otherwise agreed upon in writing, the place of performance and payment is deemed to be in our registered office. The legal provisions regarding the jurisdiction remain unaffected, unless the special provisions of 7.3.4 do not foresee anything else.
        2. Except as required by coercive private international law the law of the Federal Republic of Germany shall be applicable to this contract.
        3. This does not apply if specific consumer protection rules in the user's home country are more favorable (Art. 6 VO (EG) 593/2008).
        4. The exclusive place of jurisdiction for contracts with merchants, legal persons under public or private law or persons of public special funds is the responsible court at our registered office.
        5. In contracts with consumers the exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office, if the consumer has no general jurisdiction in Germany or in another EU Member State.

          Windfinder.com GmbH & Co. KG,
          Registered office: HRA 6742 KI, District court Kiel
          VAT-No.: DE 268454511

          represented by the general partner Windfinder.com Verwaltungsgesellschaft mbH,
          Registered office: HRB 11064 KI, District court Kiel

          which is represented by the managing directors Mr Oliver König and Mr Jonas Kaufmann

          Knorrstraße 24 Hinterhaus, 24106 Kiel

          Telefon: +49 431 800 86 43
          Telefax: +49 431 800 86 44

          E-Mail: info@windfinder.com
          Web: www.windfinder.com
          © 2014 Windfinder.com GmbH & Co. KG