1. Limited, Non-Exclusive License Granted. Company herein agrees to provide specified weather data and services (“Services”) to Customer for specific use only. This is a non-exclusive license for the use of Company Services only as prescribed, and for the duration of the term specified in Section 14 below.
2. Customer Operations. Customer and/or its Partners and/or end user customers will utilize the services as described in the aforementioned Product Offering (“Services”).
3. Company Deliverables. Company shall provide Services for inclusion by the Customer in Customer operations and/or Customer product offerings.
4. Intellectual Property and License Grant. Subject to the terms of this Agreement, Company grants Customer a nontransferable, nonexclusive license to use the Services as necessary and appropriate to facilitate the development and delivery to the Customer and/or its Partners and/or its end user. Customer may not, without written permission, sell or transfer the results of the Services provided under this Agreement. The intellectual property of Company and its licensors shall remain the intellectual property of Company for the duration of this Agreement and shall remain so upon expiration or termination of this Agreement. All copyrights, patents, patent rights, trade secrets, trademarks, service marks, trade names, moral rights, know-how, and other intellectual property and proprietary rights in connection with this Agreement and accompanying documentation, together with all improvements, enhancements, error corrections, and derivative works thereto and thereof, and any intellectual property embodied in any ideas, concepts, or inventions are or will be, and will remain, the sole and exclusive property of Company.
5. Trademarks and Trade Names. All services offered to the Customer and/or its Partners and/or its end users may contain the Company logo and/or trademark and Customer agrees not to efface such logo and/or trademarks. All resulting use of such logo and/or trademarks shall inure solely to the benefit of Company. Customer shall not use any of Company's logo and/or trademarks, or any mark or name confusingly similar thereto, in any manner, except in sales and promotional materials, provided such materials have been previously approved by Company. Customer shall not register any of Company's logos and/or trademarks or any mark or name closely resembling them.
6. No Exclusivity. Nothing in this Agreement shall be deemed to prohibit Company from providing Services to any other party on such terms as Company may elect, at Company's sole discretion.
7. Fees, Reports and Payment Terms. Customer shall pay the fees as described in the aforementioned Product Offering.
8. Right to Have Content Modified. In the event that Company determines, in its reasonable discretion, that any content, advertisements or sponsorship messages will have a material adverse effect on Company's reputation or business prospects, Company may require the removal of such content and may modify, as necessary and appropriate, any agreement with third parties for the display of such content. Company, in its reasonable discretion, may modify the Services as deemed necessary.
9. Disclaimer of Warranty. COMPANY WARRANTS THAT THE SERVICES SHALL CONFORM IN ALL MATERIAL RESPECTS TO THE DOCUMENTATION PROVIDED BY COMPANY OR SET FORTH IN THIS AGREEMENT OR IN ANY EXHIBITS ATTACHED HERETO. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, EXCEPT FOR SUCH WARRANTIES AS ARE EXPLICITLY SET FORTH IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE COMPANY SERVICES ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR COMPANY'S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
10. Limitations on Liability. Company shall neither have nor assume any liability, expressed or implied for actions or events resulting from the use or misuse of weather information or other information provided by the Company. In no event shall either party be liable to the other or to any other person for any loss or injury to earnings, profits, or goodwill or for any incidental or consequential damages of any other person whatsoever or howsoever caused, even if either party had been advised of the possibility of such damages. Except with respect to liability arising out of Sections 12 or 14 of this Agreement or willful misconduct on the part of Company, in no event will the total liability of Company for any damages incurred by the Customer exceed the fees paid under this Agreement, regardless of the form of action, whether based in contract, tort, warranty, negligence, strict liability, products liability or otherwise. The existence of multiple claims will not enlarge this limit. Company shall not be liable for any damages or penalties for delay in delivery or use of Product(s) or Meteorological Services, or for failure to give notice of delay, when such delay is due to any cause or condition outside of Company's direct control, including, but not limited to: (i) acts of God, civil or military authority; (ii) actions or inactions of any governmental entity (foreign or domestic) or its agencies and departments, the National Weather Service, or the National Oceanic and Atmospheric Administration; (iii) acts of a public enemy; (iv) suspension, interruption, or unavailability of data communicated to Company from any governmental or private sources; (v) accidents, fires, explosions, earthquakes, tornadoes, floods, energy shortages, other elements of nature; (vi) strikes, labor disputes, shortage of suitable parts, materials, or labor, computer malfunction, communication system malfunction, transportation problems, or delay in delivery by Company vendors. The scheduled delivery or performance date shall be extended by a period of time equal to the time lost because of any such delay. It is understood and agreed that any Meteorological Services provided to Customer by Company pursuant to this contract are only advisory in nature. As in the case of similar products or services provided by the meteorological consulting industry, such Services are in part based on data provided by third parties, including the National Weather Service and Customer input. Therefore, Company cannot and does not warrant or assume responsibility for the accuracy of the Meteorological Services provided by Company based on such data. It is Customer's sole responsibility to verify the correctness and accuracy of all materials, services or product furnished by Company hereunder, and Company assumes no responsibility for the correctness or accuracy of the same, except to the extent that such inaccuracies are caused by the willful misconduct of Company. Company does not warrant that the Services will be uninterrupted or error free, nor does the Company make any warranty as to the results that may be obtained from use of the Services.
11. Patents, Trademarks and Copyrights. Company will, at its own expense, defend any claims or suits that may be asserted or instituted by anyone against Customer for alleged infringement of any United States trademark or copyright relating to any products manufactured and furnished by Company hereunder, if such alleged infringement consists of the use of such products, or parts thereof, in Customer's business and provided Customer shall have made all payments then due hereunder and shall give Company notice in writing of any such claim or suit within ten (10) days of the assertion or institution of such claim or suit and transmit to Company within ten (10) days of receipt all processes and papers served upon Customer and permit Company, through its counsel, either in the name of Customer or in the name of Company, to defend the same and give all needed information, assistance and authority to enable Company to do so. If such products are in such suit held in and of themselves to infringe any valid United States trademark or copyright, then: (a) Company will pay any final award of damages in such suit attributable to such infringement, and (b) if in such suit use of such products by Customer is permanently enjoined by reason of such infringement, Company shall, at its own expense and at its sole option, either (i) procure for Customer the right to continue using the products, (ii) modify the products to render them non-infringing, (iii) replace the products with non-infringing goods, or (iv) refund the purchase price and the transportation costs paid by Customer for the products. Notwithstanding the foregoing, Company shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the products in combination with other goods or materials not furnished by Company. The foregoing states the entire liability of Company for infringement, and in no event shall Company be liable for consequential damages attributable to an infringement. As to any products furnished by Company to Customer manufactured in accordance with drawings, designs or specifications proposed or furnished by Customer or any claim of contributory infringement resulting from the use or resale by Customer of products sold hereunder, Company shall not be liable, and Customer shall indemnify Company and hold Company harmless from and against any and all loss, liability, damage, claim or expense (including but not limited to Company's reasonable attorneys fees and other costs of defense) incurred by Company as a result of any claim of patent, trademark, copyright or trade secret infringements, or infringements of any other proprietary rights of third parties. The purchase of any products hereunder does not entitle the Customer to employ the same in any patented process.
12. Indemnification. Customer shall indemnify Company against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys fees and other costs of defending any action) which Company may incur as a result of any claim by Customer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely or in part by Company's negligence.
13. Service Interruption. Customer acknowledges that there may be occasional delays or interruptions in Company Services due to equipment or network failure or circumstances that are outside of Company's ability to fully control. Any such delays or interruptions shall not be deemed to constitute a default in Company's performance hereunder, so long as such interruptions in service are not longer than twenty-four (24) hours in total in any one (1) month during the term.
14. Confidentiality. The term "Confidential Information" means any and all information revealed by either party to the other relating in any way to the business of the revealing party, which information is of value to the revealing party because it is not generally known, and which is the subject of reasonable efforts by the non-revealing party to maintain its confidentiality, including, without limitation, sketches, models, samples, software, technical information, discoveries, ideas, inventions, and pricing information; unless the non-revealing party can prove that the information: (i) is part of the public domain through no fault of the non-revealing party; (ii) was received by the non-revealing party from a third party as a matter of right without any restriction on disclosure; or (iii) was developed by the non-revealing party and was possessed by the non-revealing party prior to the receipt of Confidential Information thereof from the revealing party. Information disclosed to either party by the other party shall not be deemed to be non-confidential merely because the information is embraced by more general information in the public domain or in the possession of the non-revealing party, nor will a combination of features be deemed non-confidential merely because the individual features are in the public domain or were in the possession of the non-revealing party, unless the combination itself is in the public domain or was in the non-revealing party's possession. The Confidential Information is being revealed by either party to the other in strict confidence solely in furtherance of the transactions contemplated herein. Both parties shall reveal the Confidential Information provided by the other party to its employees only on a "need to know" basis; shall not reveal, or induce others to reveal, any of the Confidential Information in any way to any third party without the prior written approval of the revealing Company and shall not take or cause any action, or make or cause to be made any omission, which would be inconsistent with or tend to impair the rights of the revealing Company in the Confidential Information. Notwithstanding the aforementioned, both parties shall have the right to advertise and/or make public the relationship between Company and Customer.
15. Enforceability. In the event any provision of this Agreement is found to be in violation of law, unenforceable, void, or voidable, then that provision alone shall be deemed to be deleted from the Agreement, and the balance of the Agreement shall be enforced to reflect, as nearly as possible, the original intent of the parties. The parties agree that a court shall have authority to reform any term or provision of the Agreement which would cause unenforceability into a provision which is enforceable, and to conform to the balance of the Agreement after deletion or modification of a provision.
16. Choice Of Law. This Agreement shall be construed in accordance with the laws of the State of Wisconsin.
17. Entire Agreement; Modification; Waiver. This Agreement, including the exhibits hereto, constitutes the entire Agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements, express or implied, made by any party to any other party in connection with the subject matter hereof except as specifically set forth herein or in documents delivered pursuant hereto. Unless otherwise expressly provided for herein, no supplement, modification, waiver, or termination of this Agreement shall be binding unless executed in writing by both parties. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
18. Survival. The rights and obligations of the parties hereto shall survive the term of this Agreement to the extent that any performance is required under this Agreement after the expiration or termination of such term.
19. Assignment. Neither party may assign all or any part of this Agreement without the other party's written consent, which consent shall not be unreasonably withheld, except that Company and Customer may assign this Agreement to any successor to substantially all of its assets. Company may subcontract some or all of its obligations hereunder to Company affiliates and other third parties, provided that Company shall remain liable to Customer for the performance of such obligations.
20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Company and Customer and their respective successors and permitted assigns.
21. Acceptance. This Agreement shall not be effective and binding upon Company unless executed by a duly authorized officer of Company. This Agreement may be executed using counterparts and shall be fully effective and enforceable upon exchange of such executed counterparts by facsimile transmittal if facsimile transmittal is utilized.
22. Records; Audits. Customer agrees to keep all usual and proper records and books of account and all usual and proper entries relating to each transaction involving the Services. Company may cause an audit and/or inspection to be made of the applicable Customer records and facilities related to the Services and Customer's compliance with the terms of this Agreement. Any audit and/or inspection will be conducted during regular business hours at Customer's facilities, with five (5) days' written notice. Customer agrees to provide Company's designated audit or inspection team access to the relevant Customer records and facilities and to otherwise cooperate with such audit and inspection team. Any such audit will be paid for by Company, provided, however, that in the event that any such audit discloses a shortfall in payment of more than five percent (5%) for any quarter, Customer agrees to (i) pay or reimburse Company for the reasonable expenses of the examination, as determined in good faith by the parties at the completion of the examination, and (ii) immediately remit payment to Company for the full amount of any disclosed shortfalls.