Effective Date: January 1, 2019
Weather Build, Inc. End User Software License Agreement
The terms and conditions of this End User Software License Agreement (this “License Agreement”) govern your use of the accompanying WeatherBuild software (the “Software”) made available by Weather Build, Inc. (the “Company”) and constitutes a binding legal contract between you and the Company.
YOUR DOWNLOAD, INSTALLATION AND/OR USE OF THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS LICENSE AGREEMENT. PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. If you do not agree to any part of this License Agreement, then you may not use the Software and must delete all copies of the Software in your possession or control.
If you are accepting the terms of this License Agreement on behalf of a legal entity, you represent and warrant that you have the authority to bind that legal entity to the terms of this License Agreement, and, in such event, “you” and “your” will refer to that legal entity. If you do not have such authority, you must not accept this License Agreement, in which case you may not download, install or use the Software.
YOU ACKNOWLEDGE THAT THE SOFTWARE WILL CONTAIN BUGS, MAY NOT OPERATE CONSISTENTLY OR PERFORM ALL INTENDED FUNCTIONS, AND MAY CAUSE ERRORS, DATA LOSS OR OTHER PROBLEMS. YOU HEREBY ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE SOFTWARE AND RELIANCE ON ANY DATA, INFORMATION, RECOMMENDATIONS, REPORTS OR ALERTS PROVIDED OR RECEIVED FROM OR THROUGH THE SOFTWARE, INCLUDING BUT NOT LIMITED TO PUSH NOTIFICATIONS, TEMPORARY BANNERS, PERSISTENT BANNERS, BADGE ICONS, EMAIL MESSAGES, SMS MESSAGES, AND MMS MESSAGES.
Grant of License. The Company hereby grants to you, subject to all terms and conditions of this License Agreement, a limited, nonexclusive, nontransferable license (without right to sublicense) to install and use the Software in object code form solely for your internal business use, solely in accordance with all applicable documentation and other instructions provided by the Company. You acknowledge that, as further described in Section 7, the Software requires an Internet connection to the Company Servers in order to provide some or all of its functionality. You acknowledge that the foregoing license is not granted for any minimum period of time and is subject to suspension or termination without notice in the event the Company (for any reason or for no reason) suspends or terminates operation of the Company Servers necessary for the Software to function. If you are using the App on an Apple, Inc. (“Apple”) iOS device and obtained the App through the Apple App Store, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
Documentation. The Company hereby grants you, a limited, nonexclusive, nontransferable license to internally use any documentation provided by the Company regarding the Software (“Documentation”) as reasonably necessary for your authorized use of the Software. You may make a reasonable number of copies of the Documentation in connection with exercising the foregoing license. Without limiting any other terms and conditions of this License Agreement, you may not transfer or provide the Documentation to any third party.
Open Source. The Software includes certain third party open source software components. Each such component is subject to the open source license agreement.
No Other Rights. You have no rights or licenses with respect to the Software or Documentation except as expressly provided in this License Agreement. Without limiting the generality of the foregoing, you may not, except to the extent expressly provided for in Sections 1, 2 and 3 above: (a) copy, distribute, rent, lease, lend, sublicense or transfer the Software or Documentation or use the Software or Documentation on a service bureau basis; (b) decompile, reverse engineer, or disassemble the Software or otherwise attempt to discover the source code of the Software, except solely to the extent such acts are authorized under applicable law notwithstanding this prohibition; (c) create derivative works based on the Software or Documentation; (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that may appear on the Software or Documentation or during the use and operation thereof; or (e) cause the Software to become subject to the terms of any open source license agreement.
Feedback. You are not required to provide any ideas, feedback or suggestions regarding the Software (collectively, “Feedback”) to the Company. To the extent you do provide any Feedback to the Company, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to the Company and acknowledge that the Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
Ownership. Notwithstanding any use by the Company of terms such as “sale” and “purchase” in relation to the Software, the Software and Documentation are licensed, not sold. The Software and Documentation provided hereunder are the property of the Company and its third-party licensors. As between you and the Company, the Company shall retain all right, title and ownership interest (including all worldwide patent, copyright, trade secret, trademark and other intellectual property rights and other proprietary rights) in and to the Software and Documentation and any copies, derivative works, upgrades, updates, improvements and modifications thereof, in, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist.
Connectivity. The Software requires an Internet connection to servers owned, operated or controlled by the Company (“Company Servers”) in order to provide some or all functions. You are solely responsible for obtaining and paying for all Internet access services, software and hardware necessary for use of the Software. You acknowledge and agree that the Company Servers may be unavailable from time to time due to (i) equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of the Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, acts and omissions of service providers and other third parties, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any inability to use the Software caused by any of the foregoing. In addition, you acknowledge that the Software may require the use of SMS or MMS messaging in connection with providing features or functionality to you or for purposes of verifying your identity. You hereby consent to the receipt of such SMS or MMS messages and acknowledge that such receipt may cause you to incur charges with your wireless carrier.
Your Data. As between you and the Company, you retain ownership of all your project data and information that you may provide to the Company in connection with your use of the Software (“Your Data”). However, you hereby grant Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable and transferable license to use and reproduce Your Data for purposes of providing and operating the Software, for purposes of analyzing usage of the Software and for purposes of informing the development and improvement of the Software and the Company’s other products and services. In addition, you agree that Company may disclose aggregated statistics and other information relating to some or all User data on the Software (including Your Data), provided that you are not identified and Your Data is not separable from such aggregated statistics or other information. You hereby represent and warrant that you own Your Data or otherwise have all licenses, rights, consents, and permissions necessary for the use of Your Data by Company as contemplated hereunder and as may be otherwise authorized by you. You acknowledge that you are solely responsible for all of Your Data and the completeness, accuracy and reliability thereof. Company shall not intentionally make Your Data available to any third party except where required by law or legal process. However, you acknowledge that no security measures are 100% effective and that Your Data may be subject to unauthorized access. The Company is not a backup or archiving service, and you are responsible for making backups of Your Data. Your storage of and access to Your Data shall be subject to such storage and bandwidth limitations as the Company may institute or enforce from time to time.
Updates. You acknowledge that the Software may include functionality that allows it to automatically download updates that may be made available by the Company. You hereby consent to the installation of such functionality. The Software may include the ability to modify the settings associated with such functionality.
Breach; Termination. If you breach any provision of this License Agreement, this License Agreement (including all of your rights and licenses with respect to the Software and Documentation) shall immediately terminate without further notice from or action by the Company. Upon termination or expiration of this License Agreement, you agree to cease all use of the Software and Documentation and to delete all copies thereof in your possession or control. The provisions of Sections 4 through 20 shall survive any termination or expiration of this License Agreement.
Apple. You hereby acknowledge and agree that Apple: (i) is not a party to this License Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) and its subsidiaries are each a third party beneficiary of this License Agreement with the right to enforce its terms against you directly.
THE SOFTWARE AND DOCUMENTATION ARE FURNISHED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING ALERTS PROVIDED OR RECEIVED FROM OR THROUGH THE SOFTWARE, AND THE DOCUMENTATION, INCLUDING WITH RESPECT TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH YOU.
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT, YOUR USE OF (OR INABILITY TO USE) THE SOFTWARE OR RELIANCE ON ANY DATA, INFORMATION OR RECOMMENDATIONS, REPORTS OR ALERTS PROVIDED OR RECEIVED FROM OR THROUGH THE SOFTWARE, INCLUDING BUT NOT LIMITED TO PUSH NOTIFICATIONS, TEMPORARY BANNERS, PERSISTENT BANNERS, BADGE ICONS, EMAIL MESSAGES, SMS MESSAGES, AND MMS MESSAGES. EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND REGARDLESS OF THE THEORY OF LIABILITY.
IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT, YOUR USE OF (OR INABILITY TO USE) THE SOFTWARE, OR RELIANCE ON ANY DATA, INFORMATION, RECOMMENDATIONS, REPORTS OR ALERTS PROVIDED OR RECEIVED FROM OR THROUGH THE SOFTWARE EXCEED ONE HUNDRED US DOLLARS. YOU STIPULATE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES AND ACKNOWLEDGE THAT WITHOUT SUCH EXCLUSIONS AND LIMITATIONS THE COMPANY WOULD NOT MAKE AVAILABLE THE SOFTWARE WITHOUT CHARGE OR AT THE PRICE PAID BY YOU, AS APPLICABLE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE EXISTENCE OF MULTIPLE CLAIMS OR THE THEORY OF LIABILITY, AND REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
LIGHTNING DISCLAIMER. EXPERIENCE HAS SHOWN THAT THE RESOLUTION, TIMELINESS, AND FORMAT IN WHICH LIGHTNING DATA ARE PRESENTED WITHIN VARIOUS DISPLAYS AND PRODUCTS, DOES NOT PROVIDE A TOTAL SOLUTION WITH REGARD TO ADDRESSING CONCERNS REGARDING THE PRESENCE OF CONVECTIVE ACTIVITY AND/OR LIGHTNING AND THEIR POTENTIAL IMPACT ON THE SAFETY OF PERSONNEL AND/OR SAFEGUARDING OF FACILITIES, WHETHER IT BE OF IMMEDIATE OR SHORT TERM CONCERN. INTERPRETATION AND APPLICATION OF THE DATA, AS WELL AS ANY COMPARATIVE ANALYSIS AND/OR PROGNOSIS OR SIMILAR ACTIVITIES DONE BY ANY USER, ARE DONE SO SOLELY AT THE USER’S RISK AND HAVE NOT DIRECTLY OR INDIRECTLY BEEN IMPLIED, CONDONED OR RECOMMENDED BY COMPANY, AND/OR ITS DATA SUPPLIERS.
Government Restricted Rights. To the extent that you are an agency or instrumentality of the U.S. government, the parties agree that the Software and Documentation are commercial computer software and commercial computer software documentation, respectively, and that your rights therein are as specified in this License, per FAR 12.212 and DEARS 227.7202-3, as applicable, or in the case of NASA, subject to NFS 1852.227-86.
Assignment. You may not assign your rights under this License Agreement without the express prior consent of the Company. If you are a legal entity, then any merger involving you, acquisition of all or substantially all of your assets or any change of control of you shall be deemed an assignment of this License Agreement for which prior written consent is required. The Company may freely assign this License Agreement.
Export; Restricted Persons. The Software is subject to export laws and regulations. You agree to comply with any United States and international export laws and regulations that may apply. You hereby represent and warrant that you are not a Restricted Person. For purposes of this License Agreement, a “Restricted Person” is any person or entity, or any officer, director, or controlling shareholder of an entity, that is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, North Korea, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of any person or entity described under the foregoing (1) through (4).
Governing Law. This License Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to this License Agreement shall be filed only in the state or federal courts in and for the Commonwealth of Massachusetts and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Injunction. Notwithstanding anything to the contrary, the Company may apply to any court of competent jurisdiction for injunctive or other equitable relief relating to the protection or enforcement of the Company’s intellectual property rights.
Notices. Any notices to the Company, must be sent to Weather Build, Inc., 486 Green Street, Cambridge, MA 02139 to the attention of “Legal Department,” must be sent by first class registered mail or internationally recognized overnight courier and will be deemed given when received. Notwithstanding the foregoing, if the Company’s website at http://www.weatherbuild.co indicates a newer mailing address for the Company, notices must be sent to such address as described in the foregoing sentence. The Company may send notices to you to the e-mail address provided to the Company in connection with your receipt of the Software, and are deemed given when sent.
Miscellaneous. This License Agreement is the complete and final agreement of the parties with respect to the Software and Documentation, provided that this License Agreement does not supersede the terms and conditions of any confidentiality or non-disclosure agreement relating to the Software which you and Company may have entered into. If any part of this License Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other provisions. Failure by the Company to enforce any provision of this License Agreement will not be deemed a waiver of future enforcement of that or any other provision. This License Agreement may be modified only by an amendment signed by authorized representatives of both parties or by your electronic acceptance of an amendment or replacement agreement presented to you by the Company.
© 2019 Weather Build, Inc. All rights reserved.