In these Software as a Service Terms and Conditions (Terms), FLOWDECK LTD (incorporation number 8223503) (We, Us or Our) agrees to provide access to FlowDeck to You (You or Your) as an online application (known as Software as a Service), and You agree to pay Us for Your access to FlowDeck. These Terms are deemed accepted by You when You tick the box to indicate You agree to the Terms when You sign up for Your subscription.
1. Placing orders and FlowDeck supply
1.1 To access FlowDeck You can place an order (an Order below) by:
- (a) registering an account (choosing a user name and password);
- (b) choosing Your subscription type and period; and
- (c) agreeing to any fee associated with Your subscription.
1.2 Some subscriptions may be offered with the first month free (a Free Month). Only one Free Month is available to each organisation, and We may decline to offer a Free Month, or withdraw one, at any time (including where the payment card provided has already been used for a Free Month). During a Free Month You may cancel at any time up to the end of that month and no subscription fee will be payable, although any usage-based fee under clause 6.6 for use above the allowance included in the Free Month remains payable. If You do not cancel, Your subscription continues and the subscription fee becomes payable from the start of the second month.
1.3 We grant You a non-exclusive right to access and use FlowDeck from the time We accept Your Order, for Your subscription period. You must not transfer, assign or sub-license this right to anyone else without Our prior written approval.
1.4 You must stop using FlowDeck when Your subscription expires or where You or We cancel Your subscription in accordance with these Terms.
1.5 This right to access and use of FlowDeck will only apply to Your personnel and advisors as stated in the subscription description published on Our website or set out in Your Order (Authorised Personnel and Advisors) and will be subject to the limits (including user or device numbers) set out there. All Your duties and restrictions in these Terms also apply to Your Authorised Personnel and Advisors and You are responsible for Your Authorised Personnel or Advisor’s actions or failures.
1.6 Where You accept these Terms on behalf of a company, partnership, firm or other organisation, You confirm You have authority to bind that organisation to these Terms and that You are entering into these terms on its behalf.
1.7 Some subscription types (for example a view-only account) have no fee. Where no fee is stated for a subscription type in the subscription description published on Our website or in Your Order, no fee is payable for it, but all other duties and restrictions in these Terms still apply to Your use of FlowDeck under it.
2. Product details, guarantees and availability
2.1 The details and specifications for FlowDeck are as set out in Appendix 1(the Specifications).
2.2 We may automatically update or change the Specifications. Any updates or changes will not materially decrease the functionality of FlowDeck. However, due to the changes or updates, You may need to change any integrations You have with FlowDeck.
2.3 Subject to clause 2.4 and these Terms We guarantee to You (Our Guarantee) that:
- (a) FlowDeck will operate following the Specifications in all material respects;
- (e) We have the right to allow You to access FlowDeck; and
- (f) FlowDeck will not infringe any other person’s intellectual property rights
2.4 We will use reasonable efforts to make FlowDeck available 24/7 (excluding any planned outages for maintenance or upgrades), but We do not guarantee FlowDeck will be uninterrupted or error-free. Where possible, We will publish on Our website any planned outages for maintenance or upgrades. We do not guarantee FlowDeck is fit for Your purposes and it is up to You to choose the correct product for Your requirements.
2.5 FlowDeck may interoperate with software or service features that We do not provide or control. Some of these features may be available to You through FlowDeck or You may choose to use them with FlowDeck. We are not responsible for these features and We are not responsible for any failure of FlowDeck caused by these features (or Your use of these features).
2.6 FlowDeck is a tool to assist suitably qualified professionals. Any output of FlowDeck (including any simulation, calculation, result or report) is an indicative modelling output only. It is not a substitute for the independent judgement of a suitably qualified and experienced engineer or other professional, and it is not a certification of compliance with any standard, building consent/statutory requirement or code. You are responsible for reviewing, verifying and, where appropriate, independently confirming any output of FlowDeck before relying on it or providing it to any other person, and for deciding whether FlowDeck is suitable for the purpose You use it for. This clause applies in addition to item 9 of the Specifications.
2.7 These Terms are between You and Us only. No person other than You and Us has any rights under or in connection with these Terms. [and subpart 1 of Part 2 of the Contract and Commercial Law Act 2017 does not apply to them.] Where You provide any output of FlowDeck to another person (for example a client, a territorial authority, a peer reviewer or a certifier), You do so on Your own account, as Your own work and at Your own risk and We owe no duty of care to that person. We accept no responsibility to that person for any output of FlowDeck, and that person may not rely on any output of FlowDeck as against Us. You will make this clear to any person You provide an output to.
3. Your use of FlowDeck
3.1 You must:
- (a) comply with any device or user limits related to Your subscription or agreed in an Order;
- (h) not let anyone other than Your Authorised Personnel or Advisors access or use FlowDeck;
- (i) not transfer, assign or sublicense FlowDeck;
- (j) not copy, modify, interfere with, reverse engineer, decompile, disassemble or create derivative works based on FlowDeck; and
- (k) not use FlowDeck for any harmful or illegal purposes.
3.2 We may review the account, licence and usage records that We hold to confirm Your compliance with clause 3.1. Where We reasonably believe You are not complying, We may ask You to confirm in writing the number of users accessing FlowDeck and the purposes for which it is being used, and You will respond within 48 hours. We will not require access to Your premises, devices or systems.
3.3 Where You fail to comply with clauses 3.1 and 3.2 (as shown by Our review or otherwise), We may:
- (a) suspend Your access to FlowDeck;
- (j) charge You additional fees to cover any FlowDeck use or access that exceeds any restrictions based on Your subscription type (for example, too many users); or
- (k) immediately cancel Your right to use FlowDeck.
4. Privacy and Your Data
4.1 All intellectual property rights in any data You provide to Us or input into FlowDeck and any data that is generated from that data (Your Data below) (other than anonymised data, see clause 4.2) belong to You.
4.2 You grant Us a non-exclusive, royalty-free right to use Your Data for the purpose of providing You access to FlowDeck. We may aggregate and anonymise Your Data to use for research or marketing purposes, provided the aggregated data cannot reasonably be used to identify You, Your personnel, Your clients, or any individual project, geometry, site or result. If We do, We own the intellectual property rights in the anonymised data.
4.3 If there is a claim against Us in connection with Your Data, including a claim from another person that Your Data has infringed that person’s intellectual property rights or otherwise caused harm or loss to that person, You will indemnify Us and pay to Us any costs, claims, damages or liabilities that We may suffer or incur so long as We:
- (a) tell You as soon as reasonably possible about the claim;
- (m) let You take control of defending the claim;
- (m) help You defend the claim if required; and
- (m) do not settle the claim or admit liability.
4.4 We are not responsible for loss of Your Data. We recommend You keep a separate back-up copy of Your Data.
4.5 You guarantee that You have complied with, and will continue to comply with, Your obligations under the Privacy Act 2020 regarding any personal information You have collected, used and disclosed to Us.
4.6 We will comply with the Privacy Act 2020 in respect of Your Data that We collect and store. Our Privacy Policy, published at www.flow-deck.com, explains how We collect, use and store personal information.
4.7 The personal information We hold about You is limited to account, contact, billing and usage information. Your Data may also contain personal information where You choose to include it, for example in file names, project descriptions, or site addresses. You should not upload personal information to FlowDeck beyond what is necessary for Your use of it.
4.8 Our personnel’s access to Your Data is restricted as follows:
- (a) access is limited to those of Our personnel whose role requires it, and is granted by role rather than to all staff;
- (n) Our personnel will only access Your Data where it is necessary to provide, operate, secure or support FlowDeck, to investigate a fault or a suspected breach of these Terms, or where You ask Us to;
- (n) all Our personnel are bound by confidentiality obligations at least as strict as those in clause 7; and
- (n) We will not use Your Data to develop or improve FlowDeck other than in aggregated and anonymised form under clause 4.2, or with Your prior written agreement.
4.9 You agree that:
- (a) We store Your Data on secure cloud servers located in Sydney, Australia, operated by Amazon Web Services;
- (m) simulations may be processed on third party compute infrastructure located in New Zealand, Australia, Europe, North America or other locations. Your Data is transmitted to that infrastructure only for the duration of a simulation and is not retained on it once the simulation is complete; and
- (n) a current list of the compute regions We use is available on request.
4.10 On expiry or cancellation of Your subscription We will retain Your Data for 30 days, during which You may resubscribe and regain access to it. After that period We may permanently delete Your Data from Our systems, and We are not required to retain it. We will notify You by email at least 24 hours before Your Data is deleted.
4.11 Where You or We become aware of a failure to comply with the Privacy Act 2020, You or We (as applicable) must tell the other quickly and take reasonable actions to reduce the impact of the failure.
5. Security
5.1 We will use Our best endeavours to maintain appropriate technical and organisational security protections, following good industry practice, to prevent the introduction of viruses or other malicious code to Your technology systems through FlowDeck. However, We are not responsible for unintentionally introducing viruses or malicious code through FlowDeck.
5.2 You must:
- (a) ensure all users of FlowDeck keep their log-in or access details for FlowDeck confidential; and
- (m) maintain reasonable technical and organisational security protections following good industry practice for Your network to prevent viruses or other malicious code from being introduced to FlowDeck through Your use.
5.3 If You or We become aware of a security breach, You or We (as applicable) will notify the other and take reasonable actions to reduce the impact of the security breach, which may include suspending Your access to FlowDeck.
6. Fees and payment
6.1 Our fee for FlowDeck is the applicable fee for the subscription You Order (as shown on Our website or advised to You). We will invoice You for Our fee for FlowDeck on the dates stated in the subscription description published on Our website or agreed in the Order. The fee includes all Our costs and all taxes except for Goods and Services Tax payable under the Goods and Services Tax Act 1985 (GST), which You will pay in addition to the fee (where applicable). If We charge GST, Our invoice will contain all taxable supply information required to be provided to buyers by law.
6.2 You must pay the fee by the dates stated on Our website or agreed in the Order, using the payment methods We advise You of when You place Your Order. Where You provide a payment card, You authorise Us (and Our payment processor, currently Stripe) to charge that card automatically for the subscription fee at the start of each subscription period and for any usage-based fee at the end of the period in which the usage occurred, on or shortly after each billing date. You must keep a valid payment card on Your account while Your subscription continues.
6.3 If You dispute part of a fee, You must pay the undisputed part while the dispute is resolved.
6.4 We will notify You if You don’t pay any fee on time. If You still don’t pay the fee by the 7th day after Our notice, without prejudice to Our other rights and remedies We may charge You interest on the overdue amount at 10% per annum, calculated daily, until it is paid. We may also suspend Your ability to run simulations in FlowDeck while any fee remains unpaid.
6.5 We can increase Our prices but the price increase will not apply to Your current subscription term (it will only apply when Your subscription renews).
6.6 Your use of FlowDeck may be metered, including the number of simulations run and the compute resources used. Whether metering applies to Your subscription, what is metered, any usage allowance included in Your subscription, and any fee for usage above that allowance, are as set out in the subscription description published on Our website or in Your Order. Where a usage-based fee applies, We will make Your metered usage available to You through Your account and will invoice it in arrears under clause 6.1. We may apply limits on the number of simulations that may be run under Your account in a period (for example a default limit until Your first invoice has been paid), and Your account administrator may set lower limits for Your organisation or its users. We may introduce or change usage-based fees by publishing them on Our website or setting them out in Your Order, but a new or increased usage-based fee will not apply to Your current subscription period and We will notify You under clause 13.1 before it takes effect.
7. Confidentiality
7.1 We will keep Your Data confidential. You and We will keep confidential any other information You or We obtain from the other of a confidential or commercially sensitive nature that is not publicly available (other than because of a failure to comply with these Terms), in whatever form. You and We must not disclose confidential information to anyone other than Your Authorised Personnel and Advisors on a “need to know” basis and where You or We (as applicable) have confidentiality agreements with such persons on the same terms as in these Terms. You and We will only use confidential information for these Terms, except as required by law.
7.2 You and We must return or destroy all confidential information in Our or Your possession on expiry or cancellation of these Terms.
7.3 You and We will not make any statement for publication in the media or elsewhere relating to these Terms without the other’s prior written approval.
8. Intellectual property
8.1 You and We continue to own any intellectual property rights (including copyright, design rights, patents, know-how, trademarks, trade secrets, or other proprietary rights, registered or not) that You or We owned before agreeing to these Terms or that You or We create outside these Terms.
8.2 All intellectual property rights in FlowDeck belong to Us. We grant You a right to access and use FlowDeck only in accordance with these Terms.
9. Duration and cancellation of Your subscription and these Terms
9.1 These Terms start when You place an Order and continue until Your subscription ends or is cancelled.
9.2 We may suspend or cancel Your subscription immediately by giving written notice where You are in breach of any of these Terms or fail to pay any amount due within 30 days of Us providing You with an overdue notice, or where You cannot pay Your debts when due, are bankrupt or liquidated, have an administrator, receiver, liquidator, or statutory manager appointed (or similar insolvency event) or You stop operating Your business.
9.3 We can cancel Your subscription by giving written notice of at least 30 days where We will no longer provide FlowDeck to the market generally. Your subscription and these Terms will end at the end of the notice period (and You will not be required to pay any fees that would otherwise have been payable for any remaining subscription period).
9.4 You may cancel Your subscription at any time up to the end of Your current subscription period, through Your account or by written notice to Us. Such cancellation takes effect at the end of that period and You keep access to FlowDeck until then. If You do not cancel, Your subscription renews automatically for a further subscription period on these Terms and the subscription description then published on Our website.
9.5 Cancellation doesn’t affect any of Your or Our rights or obligations intended to survive termination, such as the rights and limitations for making claims under these Terms.
9.6 If Your subscription is cancelled or expires:
- (a) Your access to FlowDeck will be reduced to a view-only account, through which You may view public simulations and simulations shared with You only, and Your Data will be handled under clause 4.10; and
- (d) You will pay all outstanding fees.
10. How do We resolve disputes?
10.1 If any dispute arises, a representative of You and Us will first attempt to resolve it, and the obligations in these Terms will continue to apply. If the representatives can’t resolve the dispute within 15 days, You or We may refer the dispute to mediation. This does not stop You or Us from seeking a court order for an interim injunction at any time.
11. Where We cover You for an intellectual property breach claim
11.1 If there is a claim against You from another person that FlowDeck has infringed that person’s intellectual property rights, and the claim relates to Your use of FlowDeck as instructed by Us, and not to Your use of FlowDeck or Your Data with any other software or product, We will reimburse You any amounts You have to pay to that third party as long as You:
- (a) tell Us as soon as possible about the claim;
- (d) let Us take control of defending the claim;
- (e) help Us defend the claim if required (We will pay You reasonable rates for Your time); and
- (f) do not settle the claim or admit liability.
11.2 If there is an intellectual property claim against You or Us relating to FlowDeck (or We think there might be one), We may choose to change FlowDeck so that You can continue to use it (as long as We don’t substantially decrease the functionality), obtain a right for You to continue using it, or cancel these Terms and refund You any prepaid fees for the period after the cancellation date.
12. What happens if You or We don’t comply with these Terms?
12.1 Other than as set out in these Terms or required by law, We do not provide any warranties or guarantees for FlowDeck.
12.2 If You are a consumer in New Zealand and You are receiving FlowDeck for personal use (not business use), You may have rights under the Consumer Guarantees Act 1993 (CGA). Nothing in these Terms excludes or restricts Your rights under the CGA or other New Zealand consumer protection law. You and We agree that the CGA or any other New Zealand consumer protection law shall not apply to any use of FlowDeck for business use.
12.3 If You or We do not comply with Our obligations in these Terms, this may entitle the other to one or more remedies, such as payment of money or a court order preventing further non-compliance.
12.4 You may by notice in writing notify Us if You believe We have not met Our Guarantee. If We agree, We will either (at Our option):
- (a) fix the failure (within a reasonable period); or
- (h) cancel Your subscription and these Terms and refund You any fee You have pre-paid (for the failed part only) for any period after the cancellation.
12.5 To the greatest extent permitted by law, the maximum amount You or We will pay for any loss or costs incurred by the other is the total amount of fees paid for FlowDeck in the previous 12 months (or that will be paid in the first 12 months if the loss takes place within the first 12 months). However, this maximum will not apply to any loss or costs incurred where You or We do not comply with privacy obligations or intentionally fail to comply with these Terms or where We cover You for loss related to an intellectual property claim by a third party (see clause 11) or where You cover Us for a claim related to Your Data (see clause 4.3) or where You fail to comply with any device or user limits, attempt to transfer, assign, sub license or reverse engineer FlowDeck, use FlowDeck for any harmful or illegal purposes, or otherwise don’t comply with clause 3.1.
12.6 Neither You nor We are responsible for paying for any loss of profit, sales, savings or other consequential or indirect loss incurred by the other because of Your use of FlowDeck.
12.7 Neither You nor We are responsible for failing to meet any obligations in these Terms due to an event or situation beyond Your or Our (as applicable) reasonable control (such as a natural disaster or pandemic), which makes it impossible or illegal to perform those obligations. To rely on this, You or We (as applicable) must immediately notify the other and use best efforts to fix or reduce the effect of the event or situation. Where the event or situation continues for 30 days or more, You or We may cancel Your subscription. You will not be required to pay any subscription fees for the period after cancellation, but You will not be refunded any subscription fees already paid.
13. General legal terms
13.1 We may change these Terms from time to time. Where a change materially affects Your rights or obligations We will notify You by email at least 30 days before it takes effect and ask You to accept the updated Terms. If You do not accept, You may cancel Your subscription before the change takes effect and We will refund any prepaid fees for the remaining period. Other changes take effect when published.
13.2 All notices and communications must be sent to the email address provided by the other party, or, where stated in these Terms, may be posted on the party’s website. An emailed notice will be considered received when the email is sent.
13.3 We may assign these Terms to another business or person, who will take over the obligations to You. You may not assign, transfer or sub-license any rights or obligations under these Terms without Our prior written approval.
13.4 New Zealand law governs these Terms, and the New Zealand courts must be used to settle any dispute.
14. Definitions and interpretation
14.1 All words where the first letter is capitalised these Terms have the meaning assigned to them.
14.2 All monetary amounts are in New Zealand dollars, unless otherwise stated.
14.3 These Terms and any Order contain the complete agreement between You and Us and replace any earlier discussions and agreements (oral or written).
14.4 If there is any inconsistency between an Order and these Terms, the Order shall take priority over these Terms.
14.5 FlowDeck means as defined in the Specifications.
Appendix 1: FlowDeck Specifications
As referenced in clause 2.1
- FlowDeck is a cloud based software application that enables users to run computational fluid dynamics (CFD) simulations via a web browser. No local software installation is required.
- FlowDeck provides simulation modules for analysing fluid flow behaviour. The available modules are as advertised on the FlowDeck website or otherwise agreed.
- FlowDeck automates technical aspects of simulation setup, which may include mesh generation, boundary conditions, and solver configuration. FlowDeck guides users through any required setup decisions.
- Relevant FlowDeck modules accept imported 3D geometry files in common industry standard formats. FlowDeck does not provide geometry editing or CAD modelling capabilities.
- Simulations are executed on cloud hosted compute infrastructure managed by FlowDeck. Compute resource usage is metered.
- FlowDeck presents simulation results as visualisations and enables users to view data and export results.
- User data is stored on secure cloud infrastructure. Data handling is governed by these Terms and Conditions.
- FlowDeck is made available on a subscription basis. Subscription types, fees, and billing arrangements are as published on the FlowDeck website or as otherwise agreed.
- Simulation results are approximations. Users are responsible for evaluating results and configuration settings against their own requirements and exercising independent professional judgement.