Last Updated: May 16, 2018
This APPLICATION LICENSE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Whether or Knot LLC, d/b/a AerisWeather (“AW”) shall make available to each AW customer (the “Customer”) the AW web, desktop or mobile applications more fully described on the AW online “Order Form” (the “Order Form”) to the entity that has completed the AW Order Form.
BY CLICKING ON THE “I ACCEPT” BUTTON ON THE ORDER FORM CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER SHOULD NOT USE THE APPLICATION IF THEY DON’T AGREE WITH THIS AGREEMENT.
AW MAY MODIFY THE TERMS OF THIS AGREEMENT AT ANY TIME. IN THE EVENT OF A MATERIAL CHANGE TO THIS AGREEMENT, WE SHALL PROVIDE YOU NOTICE BY AT OUR WEBSITE (WWW.AERISWEATHER.COM), BY EMAIL OR WHEN YOU USE THE APPLICATION. IN SUCH EVENT THE VERSION DATE ABOVE SHALL BE UPDATED. UNLESS SO MODIFIED BY AW, THE CURRENT VERSION OF THESE TERMS SHALL APPLY TO ALL ORDER FORMS SUBMITTED BY CUSTOMER TO AW ON OR AFTER THE ABOVE VERSION DATE. TO THE EXTENT THE APPLICATION LICENSE “TERM” DESCRIBED BELOW IN SECTION 2 IS EXTENDED BY CUSTOMER, CUSTOMER AGREES THAT THE TERMS OF THE THEN CURRENT VERSION OF THIS AGREEMENT SHALL APPLY TO THE NEW APPLICATION LICENSE TERM.
TO THE EXTENT THAT A CUSTOMER HAS LICENSED THE AW APPLICATION SUBJECT TO AW TERMS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT, SUCH CUSTOMER AGREES THAT THE TERMS OF THIS AGREEMENT SHALL APPLY TO SUCH CUSTOMER’S USE OF THE AW APPLICATION IN THE EVENT THAT SUCH CUSTOMER AGREES TO EXTEND THE THEN CURRENT LICENSE TERM FOR SUCH APPLICATION.
USE OF THE APPLICATION IS ALSO SUBJECT TO THE TERMS AND CONDITIONS OF THE MOBILE APPLICATION’S DISTRIBUTOR (E.G. APPLE OR GOOGLE) OR THE TERMS AND CONDITIONS REQUIRED BY THE MOBILE NETWORK OPERATOR.
The particular web, desktop, mobile application, or API to be provided by AW to the Customer shall be described in the Order Form (the “Application”). The Order Form shall describe the Application to be licensed by the Customer, the term pursuant to which the Application shall be provided, the cost, charge or fee for such Application and all other relevant terms and conditions. To activate use of the Application the Customer must complete and submit the Order Form and pay the fee associated with the Application.
2.1 The Application shall be provided by AW to Customer during the term set forth in the Order Form. The Application license term, including any renewal of the term, shall be referred to as the “Term”. After the initial Term set forth in the applicable Order Form, or any renewal thereof, the Agreement shall renew for successive terms equal to the initial term unless either party provides notice of termination to the other party at least thirty (30) days prior to the end of any initial or subsequent renewal Term.
2.2 This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement and does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. Upon termination for cause by Customer, AW shall promptly refund the pre-paid Application Fee (as defined below) to Customer on a pro-rata basis. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term: 5, 7 and 9.
3.1 Subject to the provisions of this Agreement, AW grants to the Customer a non-exclusive, non-transferable, revocable, limited license to access and use the Application during the Term. Any such access or use of the Application shall be solely in a manner consistent with the terms of this Agreement. Except for the license granted in this Section 3.1, the Customer acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with AW and its licensors. The Customer shall not decompile copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Application.
3.2 Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application (or the API key related to the Application); (b) modify or make derivative works based upon the Application; (c) create Internet “links” to the Application or “frame” or “mirror” the Application on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks.
3.3 To the extent that the Application is licensed to Customer as a free developer license, as noted on the applicable Order form, the Customer agrees the Application (and related API key) shall be licensed to the Customer solely for testing, development and evaluation purposes and may not be utilized for commercial purposes or disclosed, provided or made available to any third party. Customer may not direct your end-users to sign up for their own free developer license, the Application is not intended to be used directly by end-users. The restrictions and licensing terms in this Section 3.3 are in addition to all other terms of this Agreement.
3.4 The Application includes or uses certain third party software or data that requires AW to attribute AW’s use of such software or data to the organization, legal entity or individual that licensed the software to AW; a list of such software and data can be found at www.aerisweather.com/credits.
3.5 To the extent that the Application includes lightning strike data as noted on the applicable Order form, and it is utilized by the Customer, the Customer agrees the following lightning disclaimer applies to the Customer and will be included in all sub-license terms to the Customer’s end users:
Experience has shown that the resolution, timeliness, and format 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 Seller, and/or its data suppliers.
Utilization of lightning strike data provided by the Application is not permitted to Customers or individuals domiciled in or for which AW has reasonable grounds for believing it is selling to a company or person domiciled in Australia, Taiwan, or South Africa.
The restrictions and licensing terms in this Section 3.5 are in addition to all other terms of this Agreement.
4.1 AW shall provide Customer with a User ID and password that will permit Customer to access and use the Application. Customer is solely responsible for the security and use of each user’s ID and password.
4.2 The Application enforces daily access limits and per minute rate limits, as noted on the applicable Order Form. AW shall monitor your daily usage to determine if you have exceeded the limits defined on the applicable Order Form and shall block access to the Application for the remainder of the time specified on the Order Form. A day is defined as a 24-hour period from midnight to midnight UTC time.
4.3 The use of the Application requires attribution to AW and the Customer agrees that any application or service that incorporates data or graphics obtained from the Application shall prominently display the AW marks which include, but are not limited to, the Aeris name, AerisWeather name and logo. Customer agrees to comply with the AW Attribution Guide located at www.aerisweather.com/attribution.
4.4 AW shall provide email based support concerning use of the Application Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Central Time). All inquiries concerning support and use of the Application shall be submitted via the AW helpdesk portal at http://helpdesk.aerisweather.com by one named representative selected by Customer.
The Application shall be provided at the fee set forth in the Order Form (the “Application Fee”). AW shall invoice Customer for the Application Fee on the date that Customer submits a completed Order Form to AW. The Application Fee shall be paid by Customer to AW by check, by use of Customer’s credit or debit card, through use of Customer’s PayPal account or through Customer authorized ACH. Customer hereby authorizes AW to use Customer’s credit card, debit card, PayPal or ACH instructions or information, as provided on the Order Form or otherwise, to accept payment for the Application Fees. Customer shall pay the Application Fee in accordance with the terms of the Order Form and Invoice. AW will not be responsible for any costs associated with Customer paying AW the Services Fee. In addition to any other rights granted to AW herein, AW reserves the right to suspend or terminate this Agreement and the Customer access to the Application if the Customer fails to pay any amount due on the payment due date or if AW is unable to use Customer’s credit card, debit card, PayPal or ACH information or authorization to accept payment of the Application Fee.
6.1 All information, data, text, software, music, sound, photographs, graphics, video, messages, comments or any other materials whatsoever, whether posted or transmitted to AW or the Application by Customer, shall be collectively referred to as the “Content.” The Customer retains ownership of Content. Notwithstanding the user’s ownership, the Customer user grants AW the royalty-free, world-wide, perpetual, non-exclusive, transferable license to AW to use, reproduce, modify, edit, publish, distribute and display such Content through the Application or those related websites or other applications hosted by AW. AW has not, and will not, review, monitor or edit the Content for accuracy, timeliness, integrity or completeness. AW shall have the right (but not the obligation) in its sole discretion to refuse or delete any Content that it considers to violate this Agreement be otherwise illegal. AW, in its sole and absolute discretion, may preserve Content and may also disclose Content if required to do so by law, judicial or governmental mandate or, to protect the rights, property, or personal safety of Application users and the public. Content submitted to the Application or the AW does not represent the views of AW, or any individual associated with AW, and AW does not control this Content. In no event shall Customer represent or suggest, directly or indirectly, AW’s endorsement of the Content.
6.2 Customer shall follow these rules when submitting, posting or sharing Content on the Application: Customer (a) shall not upload to, distribute through or otherwise publish through the Application any Content that is libelous, defamatory, obscene, pornographic, invasive of privacy or publicity rights, abusive, that would constitute or encourage a criminal offense or that would otherwise give rise to liability or violate any law; (b) shall not use the Application to post Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or that could be harmful to minors or that harasses or advocates harassment of another person; (c) Customer shall use the Application only in a manner consistent with all laws and regulations and in accordance with this Agreement; (d) shall not impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false IP addresses or headers, or otherwise conceal your identity from AW; (e) shall only submit Content for which Customer has the copyright or other specific permission to distribute; and (f) shall not violate, plagiarize, or infringe on the rights of third parties including copyright, trademark, trade secret, privacy, publicity or proprietary rights. AW shall not be liable in any way for any Content.
EXCEPT FOR CUSTOMER’S BREACH OF THOSE RESTRICTIONS SET FORTH IN SECTION 3 ABOVE (LICENSE) , IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE APPLICATION; OR (B) ONE PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY EXCEED THE APPLICATION FEES ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
8.1 AW represents and warrants that AW shall use commercially reasonable efforts to make the web and mobile Application available 24 hours a day, 7 days a week except for: (a) planned downtime (of which AW shall give notice to the Customer name representative), or (b) any unavailability caused by circumstances beyond AW’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or unpredicted functionality glitches.
8.2 AW warrants to the Customer that the Application shall operate in substantial accordance with the functional descriptions of the Application set forth on the Order Form. If the Application fails to so conform to that description of the Application, then AW shall, as the Customer’s sole remedy, make a commercially reasonable effort to correct the Application. All warranty claims related to the Application must be made within the then current Term for such Application.
8.3 OTHER THAN AS SET FORTH IN THIS SECTION 8, AW SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AW DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE APPLICATION WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
9.1 In the event that AW is unable to provide the Application because of any cause reasonably beyond its control, including, without limitation, acts of God, AW shall promptly give notice to the Customer and shall take all measures to resume performance. If the period of non- performance exceeds thirty (30) days from the receipt of notice, the Customer may give written notice to AW terminating this Agreement effective upon receipt.
9.2 Customer may not assign this Agreement to any person or entity without the prior written permission of AW, which shall not be unreasonably withheld.
9.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of AW to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AW in writing.
9.5 Either party may give notice by personal service, by nationally recognized overnight courier service (e.g. FedEx or DHL) or by written communication sent by certified mail, return receipt requested, to the address noted on the Order Form. Such notice shall be deemed to have been given upon delivery in the case of personal service or overnight courier and the expiration of forty-eight (48) hours after above mailing or posting.
9.6 This Agreement and the relationship between Customer and AW shall be governed by the laws of the State of Minnesota without regard to its conflict of law provisions and each party shall submit to the personal and exclusive jurisdiction of the courts located within Hennepin County, Minnesota. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Application is controlled and operated by AW from its offices within the State of Minnesota, United States of America. AW makes no representation that materials in the Application is appropriate or available for use in other locations. Those who choose to access Application from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
9.8 AW respects the intellectual property rights of others, and requires that the people who use the Application do the same. It is AW’s policy to respond promptly to claims of intellectual property misuse. If Customer believes that their work has been copied and is accessible on this Application in a way that constitutes copyright infringement, please notify AW’s copyright agent by following the guidelines set forth at www.aerisweather.com/terms.