By agreeing to use https://www.worldclimateservice.com, you agree to these Terms of Service, created on December 5, 2018, and that you, the Customer, are authorized to access this service and to agree to these Terms of Service. The World Climate Service ("WCS") is operated by Prescient Weather Ltd. (“Prescient Weather”), a Pennsylvania limited liability corporation having offices at 200 Innovation Blvd, State College, PA, 16803.
1. DATA; GRANT OF LICENSE; SERVICES
1.1 Trial License. Effective upon the first access date of the World Climate Service and acknowledgement of these Terms of Service ("Effective Date"), we grant a 30-day trial hereof and continuing thereafter during the Term (unless earlier terminated in accordance with this Agreement). Prescient Weather grants to Customer a limited, non-exclusive, non-transferable right and license to access and use the WCS data ("Data") made available through an Internet connection at https://www.worldclimateservice.com (or any successor website thereto) and any additional materials or information provided by WCS or Prescient Weather subject to and in accordance with the provisions of this Agreement.
1.2 Restrictions on Use. The trial license and right to use the Data is limited to information and data computer processing equipment and interconnected peripherals and communication devices owned, leased, or operated for the sole benefit of Customer. The Data may not, in any way, be distributed publically or to 3rd parties. The Data may not be used for timesharing or on service bureau basis or otherwise for or in support of, directly or indirectly, any other person, firm or enterprise or any other business or business operations or activities. Customer shall have no other right to copy, in whole or in part, the Data and Customer shall not modify, adapt, translate, reverse engineer, decompile, disassemble, sublicense, re-distribute, re-sell or create derivative works based on the Data other than for its internal use. All rights not specifically granted under this Agreement are expressly reserved by Prescient Weather.
1.3 Ownership. Prescient Weather retains all right, title, and interest in and to the Data, Services (defined below) and any additional materials, data or information provided by WCS or Prescient Weather to Customer hereunder and does not convey any proprietary rights or other interest therein to Customer, other than the limited license rights granted hereunder.
1.4 Services. In consideration of Customer use of the service, Prescient Weather provides the World Climate Service Seasonal and Subseasonal forecast applications at https://www.worldclimateservice.com.
2. PAYMENT FOR TRIAL SERVICES
2.1 Fees and Expenses. The World Climate Service 30-day trial is provided at no cost to the Customer.
3. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
3.1 DISCLAIMER OF WARRANTIES. THE DATA AND SERVICES AND ANY OTHER INFORMATION, MATERIALS OR SERVICES FURNISHED BY PRESCIENT WEATHER HEREUNDER ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, SUITABILITY, ACCURACY, ADEQUACY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
3.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL PRESCIENT WEATHER OR WCS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR ANTICIPATED REVENUE, AND REGARDLESS OF THE FORM OR CATEGORIZATION OF THE ACTION OR THE BASIS OF THE CLAIM, WHETHER BASED ON TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR BREACH OF CONTRACT CLAIMS OR ON ANY OTHER BASIS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PRESCIENT WEATHER OR WCS TO CUSTOMER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PRESCIENT WEATHER HEREUNDER FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE APPLICABLE CLAIM OR ACTION FIRST AROSE, REGARDLESS OF THE BASIS OF THE CLAIM OR FORM OF ANY ACTION, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY AVAILABLE TO CUSTOMER.
3.3 Indemnification. Customer agrees to defend and/or handle at its own expense, any claim or action against Prescient Weather arising out of or based upon: (i) the use by Customer, or any customer or client of Customer, of any of the Data, Services or Customer's data, materials or information; (ii) any regulatory actions, suits, causes of action, claims, counterclaims, fines, judgments or the defense of any such or similar proceedings arising from or in any way relating to use of the Data or Services by the Customer; (iii) any breach of or inaccuracy in any representation or warranty or covenant made by Customer pursuant to this Agreement; or (iv) any other act or omission of Customer. Customer further agrees to indemnify and hold Prescient Weather harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees) associated with any such claim or action. Prescient Weather may, at its expense, to the extent necessary to protect its interests, participate in the defense and handling of any such claim or action at and any negotiations for its settlement or compromise. No settlement or compromise of any such claim or action which may adversely affect the rights or obligations of Prescient Weather shall be made without Prescient Weather’s prior written approval.
3.4 Copyright Indemnity. Prescient Weather hereby represents, warrants and covenants to Customer that it has the full legal right to license the Data provided to Customer under this Agreement, and there is no claim, litigation or proceeding pending or threatened against Prescient Weather with respect to such Data or the support services, or any component thereof, alleging infringement of any patent or copyright or violation of any trade secret or any other proprietary right of any person. Prescient Weather further warrants that it will immediately notify Customer if, during the term of this Agreement, Prescient Weather becomes aware of any action, suit, claim, litigation or proceeding, pending or threatened, which may have a material adverse effect on Prescient Weather’s ability to fulfill its obligations under the Agreement.
4. TERM; TERMINATION
4.1 Term. This Agreement shall be effective as of the Effective Date herein and shall terminate October 30, 2019 unless the Agreement is renewed. This Agreement may be renewed where: i) Prescient Weather sends written notification to Customer indicating Prescient Weather's desire to renew the Agreement; ii) such notification is sent to Customer at least thirty (30) days prior to the termination date; and iii) Customer consents in writing to renew the Agreement. If Customer renews the Agreement, the renewal term shall be for an additional one-year period.
4.2 Termination. Prescient Weather may terminate this Agreement, in whole or in part, reserving cumulatively all other remedies and rights under this Agreement and in law and in equity, if: (i) Customer fails to pay any fees or charges when due; (ii) Customer materially breaches any provision of this Agreement and fails to cure such breach within ten (10) days of receipt of notice from Prescient Weather; and/or (iii) Customer becomes bankrupt or insolvent, within the meaning of the United States Bankruptcy Code or any substantial and relevant portion of its assets are included in any arrangement with its creditors, an order to windup or submission to control by a receiver, assignee or trustee for the purpose of preserving the assets, whether by the voluntary act of the affected party or otherwise.
4.3 Effect of Termination. Upon termination or expiration of this Agreement, (i) all licenses granted hereunder shall terminate (ii) Customer shall return to Prescient Weather (or destroy at Prescient Weather’s request) all Data and any other Prescient Weather information and materials, together with all copies thereof, in its possession or under its control; however, Customer is entitled to retain any and all derivative works created during the Agreement for internal purposes only.
5.1 Customer agrees to regard and preserve as confidential all Data and other confidential information of Prescient Weather that may be obtained as a result of this Agreement and which is labeled as “Confidential” or words of similar import at the time it is obtained or if disclosed orally, subsequently confirmed as confidential in writing within five (5) days after its oral disclosure (collectively “Confidential Information”). Customer agrees not to disclose such confidential information to any person, firm or enterprise unless authorized by Prescient Weather in writing. Customer acknowledges that the Data is the Confidential Information of, and proprietary to, Prescient Weather and unless Customer has obtained Prescient Weather’s written consent, Customer shall keep the Data strictly confidential and prevent its disclosure to and use by any person, firm or enterprise other than employees or representatives of Customer, or other persons on Customer’s premises for purposes specifically related to Customer’s permitted use of the Data and who are under obligations of confidentiality, substantially similar to those contained in this Agreement.
5.2 Customer acknowledges and agrees that, in the event of a breach or threatened breach of its confidentiality obligations above, Prescient Weather will have no adequate remedy in money damages and, accordingly, shall be entitled to seek injunctive relief against such breach or threatened breach without the obligation to post bond; provided, however, that no specification of a particular remedy shall be construed as a waiver, prohibition or limitation of any other contractual, legal or equitable remedies in the event of a breach hereof.
6.1 Customer may not assign, transfer, delegate or subcontract this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Prescient Weather and any attempt to do so shall be void.
6.2 This Agreement shall be governed by the substantive laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws principles. The parties agree that the courts of Centre County in the Commonwealth of Pennsylvania or the federal courts situate in the Middle District of the Commonwealth of Pennsylvania shall have sole and exclusive jurisdiction over all disputes arising out of this Agreement and expressly consent to (and waive any challenge or objection to) personal jurisdiction in the Commonwealth of Pennsylvania. No claim, demand, action or legal proceeding may be initiated, brought or commenced by either party against the other more than two years after the cause of action arose. No modification, course of conduct, amendment, supplement to or waiver of this Agreement shall be binding unless made in writing and signed by both parties. At no time shall any failure or delay by either party in enforcing any provisions, exercising any option, or requiring performance of any provisions, be construed to be a waiver, continuing waiver of that or any other term or condition of this Agreement. If any provisions of this Agreement are held invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect. Neither party shall be liable for any delay or failure to perform resulting from acts beyond its control. Headings are for reference only and shall not affect the meaning of any provision.
6.3 Unless otherwise specified herein, all notices must be in writing and delivered personally or sent by overnight or certified mail, postage prepaid, or sent electronically with the means to confirm or verify receipt, to the address of the recipient designated above, to the attention of the undersigned, or such other address or addressee as the recipient has given the sender in writing. All notices will be deemed given on delivery or when placed in the mail as specified herein or when confirmation or verification of receipt is received, whichever occurs earlier.