WEATHER ANALYTICS, LLC
TERMS AND CONDITIONS FOR USE OF SITE, SERVICES AND WEATHER REPORTS
June 5, 2014
FOLLOWING ARE THE TERMS AND CONDITIONS FOR OBTAINING AND USING WEATHER REPORTS AND SERVICES FROM US THROUGH THIS SITE OR OTHERWISE. READ THEM CAREFULLY. YOU MUST ACCEPT THESE TERMS AND CONDITIONS BEFORE OBTAINING OR USING OUR WEATHER REPORTS. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND USE OF THIS SITE OR POSSESSION A WEATHER REPORT WILL CREATE A BINDING AGREEMENT BETWEEN YOU AND US GOVERNING YOUR USE OF OUR WEATHER REPORTS INCLUDING BINDING ARBITRATION (THIS “AGREEMENT”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, DO NOT PROCEED ANY FURTHER AND DO NOT USE THIS SITE OR ANY WEATHER REPORTS PROVIDED BY US.
WE RESERVE THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME. THIS AGREEMENT WAS LAST REVISED ON THE DATE SHOWN ABOVE. IF WE MODIFY THIS AGREEMENT, YOU WILL BE AFFORDED THE OPPORTUNITY TO ACCEPT ANY CHANGES TO THIS AGREEMENT. IF AT ANY TIME YOU CHOOSE NOT TO ACCEPT THE CHANGES TO THIS AGREEMENT, DO NOT USE THIS SITE OR ANY WEATHER REPORTS OR SERVICES PROVIDED BY US.
1. CERTAIN DEFINITIONS
1.1 The terms “we”, “us”, and “our” refer to Weather Analytics, LLC and its subsidiaries and affiliates (collectively, “Weather Analytics”).
1.2 The terms “you” and “yours” refer to the person entering into this Agreement with us and to whom we are granting the right of access to our Services and a license to use our Data, as set forth below. For purposes of this Agreement, the term “person” means an individual ,corporation, partnership, LLC, government jurisdiction or agency or other entity on whose behalf the Services are being used and the Data is being obtained.
1.3 The term “WR” means the Weather Reports, provided by us to you through the Services or otherwise. We provide a number of WRs including Weather Verification Reports, Underwriting Reports, Coastal Risk Reports, etc.
1.4 The term “Site” means the web sites at http://insurance.weatheranalytics.com but also includes any other web site that we may own or operate in the future for which a subscription is required and/or access to which is password protected.
2. RIGHT OF ACCESS AND GRANT OF LICENSE
2.1 We reserve the right to restrict your access to part or all of the Site (including any password protected areas) at any time without notice or liability.
2.2 On the terms and subject to the conditions in this Agreement, we hereby grant you a nonexclusive, nontransferable license (i) to use the WRs for personal or internal business use and (ii) to use and disseminate a Limited Amount of the information from the WRs be incorporated in published reports, whether in print or electronic form, produced and sold or otherwise made available by you in the usual course of your business. A “Limited Amount” of the information means an amount that, evaluated quantitatively and/or qualitatively, in our sole judgment, does not compete or interfere with, or otherwise affect, our ability to exploit the WRs or to realize revenue therefrom. This license does not entitle you to, and you may not, use or disseminate the WRs in any manner that, in our sole judgment, could affect our ability to license the WRs or could cause the information so used or disseminated to be a source of or substitute for WRs otherwise available from us. You may make a backup copy of the WRs, provided that all applicable copyright notices are maintained with the WRs.
3. RESERVATION OF PROPRIETARY RIGHTS
3.1 This Agreement gives you only the rights explicitly set forth in the Right of Access and Grant of License provisions (above). We own and shall retain all rights and interest in the intellectual property rights in the Site content, WRs and our proprietary information, which includes, without limitation, all software, source and object code, specifications, metrics, customizations, designs, processes, techniques, concepts, improvements, discoveries and inventions, including, without limitation, any modifications, improvements or derivative works thereof and all works of authorship or inventions created, invented, reduced to practice or delivered by us or any third party either solely or jointly with others, arising from this Agreement, including all copies and portions thereof, whether made by or under the direction of us or you.
3.2 You may not remove, alter, cover, or disguise any acknowledgements, copyright notice, trademark, or other proprietary rights notices placed by us on the WR or any portion thereof or provided with it.
4.1 You agree to pay all fees for the WRs provided to you pursuant to this Agreement as set forth in the pricing schedule at the Site or as otherwise agreed to between you and us. We may increase any price or fee and/or modify any payment terms for the WRs at any time by giving advance notice of the change and its effective date to you.
4.4 If, in good faith, you dispute any amount charged to you, you must provide us written notice of the dispute within thirty (30) days of receipt of the statement or invoice on which such disputed charge appears. You agree to pay any undisputed portion of such statement when due. Your failure to give timely notice as required by this section will constitute your approval of such amounts billed to you. You will reimburse us for all costs of collection, including reasonable attorneys’ fees. You will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less.
5. TERMINATION AND REMEDIES
5.1 We may terminate this Agreement and/or refuse to provide you with the WRs for any reason, including, without limitation, your failure to pay for the WRs pursuant to the terms of this Agreement.
5.2 Without limiting other rights or remedies set forth in this Agreement or otherwise available at law or in equity, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to this Site, in whole or in part (i) if you breach this Agreement; (ii) if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; or (iii) if we believe, in our sole discretion, that your actions may cause legal liability for you, us, other users or third parties.
6. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
6.1 EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, ALL WRS SOLD, LICENSED OR PROVIDED THROUGH THIS SITE OR OTHERWISE ARE GOVERNED BY THIS AGREEMENT AND ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. WE DO NOT MAKE ANY WARRANTIES, CONDITIONS OR REPRESENTATIONS TO YOU WITH RESPECT TO THE WRS, OR THE CORRECTNESS OR ACCURACY THEREOF, PROVIDED HEREUNDER, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACTS, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING THE PROVISION OF THE WRS, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE BINDING ON US. YOU ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY OR NONCONFORMITY IN THE WRS. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY EXCLUDE AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE WRS (OR YOUR USE THEREOF) WILL BE ERROR FREE OR UNINTERRUPTED. YOU ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE WRS.
6.2 NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF DATA, ACCURACY OR CORRECTNESS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITIES OR SOFTWARE ERROR, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RESULTING FROM THE USE OF OR INABILITY TO USE THE WRS, EVEN IF WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. OUR TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID FOR WRS PURCHASED BY YOU HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH NOTIFICATION.
6.3 We are not responsible for any loss or damage that you may suffer as a result of your not using the WRs correctly or if you fail to comply with this Agreement or any other instructions given to you by us.
You agree to indemnify, defend and hold us, our subsidiaries and affiliates and each of our respective officers, directors, agents, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of the following events: (i) your breach of any warranty, representation or obligation set forth in this Agreement; (ii) your negligence or willful misconduct; (iii) your violation of any law, regulation or right of any third party; (iv) any dispute or action between you and any third party, including parties selling or advertising goods or services on this website; and (v) your use of the Site and WRs.
We may transfer and assign this Agreement and our rights and obligations hereunder, in whole or in part, at any time with or without notice to you. You may not transfer and assign this Agreement or your rights or obligations hereunder, or any part thereof, to any other person without our prior written consent.
9.1 This Agreement shall be construed, interpreted and governed by laws of the United States of America and the State of Maryland without regard to its conflicts of law provisions. You and we will attempt to resolve conflicts or disputes under this Agreement in a fair and reasonable manner and agree, if resolution cannot be made, to attempt to mediate the conflict through a professional mediator. If mediation does not settle any dispute or action which arises under this Agreement or which relates in any way to this Agreement or the subject matter of this Agreement, it shall be subject to arbitration under the rules governing commercial arbitration as promulgated by the American Arbitration Association before a single arbitrator in Bethesda, Maryland.
9.2 This Agreement constitutes the entire agreement between you and us pertaining to the use of the Site and WRs.
9.3 If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision will be considered severed from the Agreement and will not affect the validity and enforceability of the remaining provisions. This Agreement may be modified only by our posting of changes to this Agreement on the Site or by a writing signed by you and us.