WeatherFlow-Tempest, Inc. Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING ANY PHYSICAL OR DATA AND SOFTWARE PRODUCTS MADE AVAILABLE TO COMMERCIAL USER BY WEATHERFLOW-TEMPEST, INC., REGARDLESS IF SUCH PRODUCTS ARE WEATHERFLOW-BRANDED, TEMPEST
BRANDED, OR OTHERWISE BRANDED. BY USING YOUR WEATHERFLOW PRODUCTS, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE PRODUCTS AND PROMPTLY CONTACT WEATHERFLOW-TEMPEST, INC. FOR A REFUND PURSUANT TO OUR REFUND TERMS.
This Software License Agreement (“Agreement”) between commercial user with an annual gross revenue of less than $10 million (“Commercial User”, “You”, or “Your”) and WeatherFlow Tempest, Inc. (“WeatherFlow”) and governs Commercial User’s use of any WeatherFlow website, mobile application, application, API feed and/or access, software, source code, firmware, site, embedded software, content, analyses, graphs, maps, charts, third party software, data, documentation, product, developer toolkit, or service linking to or containing this Agreement, including Tempest, TempestWx, DataScope, StormTrack, StormPrint, WindX, WindAlert, iWindsurf, iKitesurf, SailFlow, and FishWeather (collectively “Data and Software Products”). Data and Software Products shall include any data or products created, originating, or resulting from another Software Product, along with updates or replacements to any Software Product, and it shall not be necessary for a Software Product to coordinate with, communicate with, or otherwise relate to physical hardware products to be considered a Software Product.
The Data and Software Products made available to Commercial User by WeatherFlow are licensed, not sold, to Commercial User by Weatherflow, for use only under the terms of this License. WeatherFlow and its licensors retain all ownership and intellectual property rights of, in, and to the Data and Software Products.
PERMITTED USE AND RESTRICTIONS
WeatherFlow grants to Commercial User a limited, non exclusive commercial license to the Data and Software Products, subject to the following restrictions:
- Commercial User shall be assigned user accounts, passwords, access token(s), and other access information (“Account Credentials”) and Commercial User shall not share, transfer, or assign the Account Credentials without express written permission from WeatherFlow, and any attempted transfer or assignment is void;
- Commercial User shall promptly pay all fees, taxes, and payments due for continued use of and access to the Data and Software Products, subject to any trial or credits granted to Commercial User by WeatherFlow;
- Commercial User may use the Data and Software Products for commercial or business purposes on a non-exclusive basis, provided that Commercial User shall not in any way compete with WeatherFlow or WeatherFlow’s business operations, and provided that Commercial User shall not make the Data and Software Products publicly accessible. (If you desire to use the Data and Software Products on an exclusive basis, please contact WeatherFlow at email@example.com to arrange a separate exclusive license from Weatherflow regarding your desired exclusive use);
- Commercial User shall not use Data and Software Products in a way that the Data and Software Products are a substantial component of a good, product, or service offered and/or sold by Commercial User in the amount of more than $50,000 in annual revenue;
- Commercial User consents to receiving certain communications from Weatherflow, including necessary service announcements, administrative messages, newsletters, or other marketing communications;
- Commercial User shall not use the Data and Software Products in any way that is contrary to applicable local, state, national, regional, or international law (availability of some of the Data and Software Products, or features thereof, may vary by language or region), including use that is defamatory or otherwise objectionable;
- Commercial User shall not use the Data and Software Products in any way that violates or infringes the rights of WeatherFlow or any third party (including any of WeatherFlow’s third party service providers, vendors, clients, or customers), including use that is harassing, abusive, misleading, harmful or otherwise objectionable;
- Commercial User shall not use the Data and Software Products in any way that could damage, disable, overburden, impair or harm any server network, computer system, resource, device, equipment, or service provide of Weatherflow;
- Commercial User shall not use the Data and Software Products for the purposes of gambling or betting;
- Commercial User shall not use the Data and Software Products either directly or indirectly for the purpose of triggering a payout effect within any form of risk transfer, including, without limitation, insurance, reinsurance, financial transactions, or capital markets transactions;
- Commercial User shall be responsible for obtaining and paying for all cellular, wifi, or other internet access necessary or desirable to download or use the Data and Software Products or features thereof, including any text or data charges;
- Commercial User shall not misappropriate WeatherFlow’s proprietary processes, information, or trade secrets;
- Commercial User shall consult with WeatherFlow prior to using any of the trademarks, service marks, designs, and logos (“Marks”) displayed in the Data and Software Products, including for the purpose of advertising, promotion or to imply an endorsement by or relationship with WeatherFlow or its licensors, so that Commercial User and WeatherFlow properly respect each other’s branding guidelines;
- Commercial User shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Data and Software Products;
- Commercial User shall not provide unauthorized access to the Data and Software Products; and
Use of the Data and Software Products outside the scope of this Agreement or in a way inconsistent with this Agreement, or Commercial User’s violation of one or more of the restrictions or conditions of this Agreement, shall be viewed as copyright infringement and/or a breach of this Agreement. Commercial User agrees that WeatherFlow will be irreparably harmed by use outside the scope of or inconsistent with this Agreement and further agrees that WeatherFlow shall be entitled to injunctive relief as a result of such improper use. WeatherFlow reserves the right to immediately terminate the Account Credentials and/or access to the Data and Software Products, without notice, for any reason or no reason. Commercial User agrees that WeatherFlow will not be liable for any damages arising from any interruption, suspension or termination of your Account Credentials or access or use of the Data and Software Products. Your failure to comply with this License may also expose you to civil and/or criminal liability.
If you use an Apple device to access, use, or download certain Data and Software Products from the Apple App Store (“Apple Device Services”), then you agree and acknowledge that:
- Apple, Inc. is not a party to and bears no duties or obligations to you, including, but not limited to, any obligation to furnish you with Apple Device Services maintenance and support;
- In the event of any failure of the Apple Device Services to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price you paid to Apple for such Apple Device Services. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Device Services;
- You will have no claims, and you waive any and all rights and causes of action against Apple with respect to the Apple Device Services or this Agreement, including, but not limited to claims related to maintenance and support, intellectual property infringement, product liability, consumer protection, privacy, or regulatory or legal conformance; and
- Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this License against you as a third party beneficiary thereof.
Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Should you desire to file any claim against WeatherFlow arising out of or related to the Data and Software Products, you must do so within one (1) year of the day you become aware of the claim. Failure to file a claim within the aforementioned timeframe will permanently bar the claim and constitute your complete and final waiver of any claim in connection therewith. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator will be final and unappealable. The arbitration will be conducted in Santa Cruz County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, WeatherFlow may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
- The Data and Software Products and other technology licensed hereunder may be subject to the export control laws and regulations of the United States. You acknowledge that your access to, downloading, use, possession, export or re-export of the Data and Software Products to (or to a national or resident of) any country outside of the United States may be subject to export controls and other applicable laws that may be imposed by the United States Government or any country or organization of nations within whose jurisdiction you use the Data and Software Products. Determination of the applicable law and compliance therewith is your sole obligation and responsibility. You represent and warrant that: (i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (ii) you are not listed on any United States Government list of prohibited or restricted parties.
- WeatherFlow operates the Data and Software Products in the United States, which means that if you choose to access our Data and Software Products from a location outside the United States, you acknowledge and consent to the collection, transmission, use, storage, and processing of your personal information in countries outside of your country of residence. Unless we enter into a separate, mutually signed, written agreement with you on different terms, we do not represent that the Data and Software Products are available for use in jurisdictions outside of the United States. You agree you are solely responsible for complying with all local laws, regulations, and rules in the jurisdiction in which you reside or access the Data and Software Products to the extent such laws are applicable.
LIMITATION OF LIABILITY
WEATHERFLOW, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE, AND LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, UPDATES TO, OR THE INABILITY TO USE THE DATA AND SOFTWARE PRODUCTS, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE DATA AND SOFTWARE PRODUCTS, OR FROM ANY FAULT OR ERROR MADE BY WEATHERFLOW OR ANYONE ACTING ON ITS BEHALF, INCLUDING THIRD PARTY SERVICE PROVIDERS, OR FROM YOUR RELIANCE ON THE CONTENT OF THE DATA AND SOFTWARE PRODUCTS, INCLUDING, WITHOUT LIMITATION, CONTENT ORIGINATING FROM THIRD PARTIES, OR FROM ANY COMMUNICATION WITH THE DATA AND SOFTWARE PRODUCTS, OR WITH OTHER USERS ON OR THROUGH THE DATA AND SOFTWARE PRODUCTS, OR FROM ANY DENIAL OR CANCELLATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE DATA AND SOFTWARE PRODUCTS. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS OR MALFUNCTIONS, AND IN LIGHT OF THE RELEVANT CIRCUMSTANCES. IN NO EVENT WILL WEATHERFLOW’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY OF THE DATA AND SOFTWARE PRODUCTS, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH DATA AND SOFTWARE PRODUCTS.
WEATHERFLOW PROVIDES THE DATA AND SOFTWARE PRODUCTS FOR USE ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS. WEATHERFLOW HEREBY DISCLAIMS ALL WARRANTIES AND
REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA AND SOFTWARE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE DATA AND SOFTWARE PRODUCTS WILL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM WEATHERFLOW, ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE ANY WARRANTY.
YOU AGREE AND ACKNOWLEDGE THAT YOU ASSUME FULL, EXCLUSIVE, AND SOLE RESPONSIBILITY FOR YOUR USE OF AND RELIANCE ON THE DATA AND SOFTWARE PRODUCTS, AND FURTHER AGREE AND ACKNOWLEDGE THAT YOUR USE OF AND RELIANCE ON THE DATA AND SOFTWARE PRODUCTS IS MADE ENTIRELY AT YOUR OWN RISK. WINDSURFING, SAILING, KITEBOARDING, KITING, KITESURFING, YACHTING, FISHING, SAILBOARDING, BOARDSAILING, SNOW KITING, AND OTHER SPORT ACTIVITIES (“SPORT ACTIVITIES”) CAN BE DANGEROUS. THE DATA AND SOFTWARE PRODUCTS DO NOT AND ARE NOT INTENDED TO MAKE ANY RECOMMENDATIONS OR SUGGESTIONS AS TO THE SAFETY, ADVISABILITY, OR RISKS INVOLVED WITH ANY SPORT ACTIVITIES AT ANY GIVEN TIME. THE INFORMATION PROVIDED BY THE DATA AND SOFTWARE PRODUCTS IS NOT INTENDED TO REPLACE THE INFORMATION OR CONDITIONS YOU PERSONALLY OBSERVE. IN THE EVENT THAT THE INFORMATION OR CONDITIONS YOU OBSERVE ARE DIFFERENT THAN THE INFORMATION PROVIDED BY THE DATA AND SOFTWARE PRODUCTS, YOU MUST NOT RELY ON THE DATA AND SOFTWARE PRODUCTS. FURTHER, THE DATA AND SOFTWARE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RELEASE AS CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE AND, AS SUCH, WEATHERFLOW SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES AND USES.
You indemnify and hold WeatherFlow harmless from any demands, loss, liability, claims, or expenses (including attorneys’ fees), made against WeatherFlow by any third party arising out of or in connection with your use of the Data and Software Products. You indemnify, defend, and hold harmless WeatherFlow, its officers, directors, employees, suppliers, licensors, affiliates, and successors from and against any losses, damages, liabilities, demands, judgments, settlements, fines, costs, and expenses (including attorney's fees and costs) (“Losses”) arising out of or relating to any claims that you have used the Data and Software Products in violation of another party's rights, in violation of any law, in violation of any provisions of this Agreement, or any other claim related to your use of the Data and Software Products. Without limiting the foregoing, you agree to indemnify, defend, and hold harmless WeatherFlow against any and all Losses resulting from any kind of injury or damage to person or property arising out of or resulting from any Sport Activities in which you engage. WeatherFlow reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify WeatherFlow, and you agree to cooperate with WeatherFlow’s defense of these claims. You agree not to settle any such matter without WeatherFlow’s prior written consent. WeatherFlow will use reasonable efforts to notify you of any such claim, action, or proceeding when we become aware of it.
This license will take precedence over any conflicting terms published by a third party that you may have accepted (or in the future may be required to accept) in connection with your access to or use of the Data and Software Products. From time to time, and at any time, we may modify the terms of this License. Your continued access to and use of the Data and Software Products after such changes are effective is your acknowledgment and agreement to such modifications. You may not assign or transfer your rights in and to the Data and Software Products, without the prior written consent of WeatherFlow. WeatherFlow may assign its rights in and to the Data and Software Products to a third party at its sole and absolute discretion, provided that the third party undertakes WeatherFlow’s obligations to you under this Agreement. The representations, warranties, covenants, liability, indemnification, and other obligations in these Terms will survive termination of this Agreement. If any part of this Agreement is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. In the event any content, information, or material on the Data and Software Products is in conflict with this Agreement, this Agreement will control. Our failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any part of the Terms will be effective only with our written, signed consent. These Terms are governed by and construed in accordance with the laws of the State of California without reference to the principles of conflicts of laws thereof. The parties expressly stipulate that the 1980 Convention on Contracts for the International Sale of Goods will not apply, nor will the Uniform Computer Information Transactions Act.
QUESTIONS, REQUESTS, AND MORE INFORMATION
Questions, Requests, and More Information. If you have any questions about WeatherFlow, the Data and Software Products, or would like request a written copy of this Agreement, please contact us at any time:
108 Whispering Pines Dr. Suite 245
Scotts Valley, CA 95066