Terms of Service
Effective as of January 6, 2019
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“You” or the “Authorized User”) AND WEATHERCHECK, INC. (“We” or “Company”).
COMPANY IS WILLING TO LICENSE AND ALLOW THE USE OF THIS COMPANY WEBSITE ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS TOS. IF YOU DO NOT AGREE WITH THIS TOS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE COMPANY WEBSITE AND ARE INSTRUCTED TO EXIT THE COMPANY WEBSITE IMMEDIATELY.
1. Changes to the Terms of Service and the COMPANY Website
a. The Company Website is a work in progress—Many updates in the design, functions, and services offered by the Company Website are in the works.
b. We reserve the right to update the Company Website and the TOS from time to time, at our discretion.
c. We will notify you of any major changes, but please monitor the Company Website to stay informed of any updates and changes.
d. You acknowledge and agree that your continued use of the Company Website following the publishing of an updated version of the TOS means that you accept and agree to the changes.
2. LICENSE GRANT.
a. The Company Website is provided by Company, and this TOS provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to use the Company Website and any programs, services, tools, materials, or information made available through or from the Company Website conditioned on your continued compliance with the terms and conditions of this TOS.
b. This TOS permits you to use and access for personal or business purposes only the Company Website (i) on a single laptop, workstation, or computer and (ii) from the Internet or through an on-line network.
c. You may load information from the Company Website into your laptop’s, workstation’s, or computer’s temporary memory (RAM) and print and download materials and information from the Company Website solely for your personal or business use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information.
d. If you are using the Company Website on behalf of a company or other form of entity, please note that such a company or entity may have a separate agreement with Company regarding access and usage privileges for the Company Website, including, without limitation, a member services agreement with Company. Nevertheless, your personal use of the Company Website will be subject to the obligations and restrictions regarding use of the Company Website as set forth in this TOS.
a. You may not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit any data, materials or other information provided by Company through the Company Website in any manner not expressly permitted by this TOS; and
b. You may not use the Company Website in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact Company.
4. THE WEBSITE DOES NOT PROVIDE PROPERTY INSPECTIONS.
The Company Website provides weather data and post-event information for the property address provided by you in the Company Website. Company provides the Company Website for information purposes only. THE COMPANY WEBSITE DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, A PHYSICAL INSPECTION FOR INSURANCE PURPOSES. If you require advice or services concerning the filing of an insurance claims, you should consult with your insurance company.
5. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM COMPANY.
a. By registering with the Company Website, you thereby consent to be contacted
and to receive communications regarding programs, services, tools, materials,
or information made available through or from the Company WebSite via (i)
email or (ii) SMS, MMS, or text message (“Text Messages”) on your enabled
wireless device (such as a smart phone or tablet).
b. You acknowledge and agree that, for Text Messages sent to you from the Company Website, you will be solely responsible for any message charges,
data rates and other fees applied and charged by your wireless carrier.
c. You agree keep to keep all email addresses or telephone numbers provided to the Company WebSite.
d. You agree to regularly check your text and e-mail messages for
communications from the Company Website.
6. USER OBLIGATIONS.
a. By downloading, accessing, or using the Company Website to view and/or receive our information and materials, you represent that you are at least the legal age of majority and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Company Website, including, without limitation, when you provide information via a Company Website registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, Company reserves the right to terminate immediately your access to and use of the Company Website. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Company Website.
b. You acknowledge and agree that use of the Internet and access to or transmissions or communications with or from the Company Website is solely at your own risk. While Company has endeavored to create a secure and reliable Company Website, you should understand that the confidentiality of any communication or material transmitted to/from the Company Website over the Internet or other form of global communication network cannot be guaranteed. Accordingly, Company is not responsible for the security of any information transmitted to or from the Company Website.
c. You agree to assume all responsibility concerning activities related to your use of the Company Website, including, providing any support or meeting any requirements of your contracts with third parties, obtaining and paying for all licenses and costs for third-party software and hardware necessary for implementation of the Company Website, and maintaining and backing up any data.
7. OTHER TERMS AND CONDITIONS.
Additional notices, terms, and conditions may apply to receipt of services, Authorized User registration with the Company Website, and/or to other specific portions or features of the Company Website, all of which are made a part of this TOS by this reference. If there is a conflict between this TOS and the terms posted for or applicable to a specific portion of the Company Website, the latter terms shall control with respect to your use of that portion of the Company Website. Company’s obligations, if any, with respect to its programs, services, tools, materials, or information are governed solely by the terms, conditions, notices, and agreements pursuant to which they are provided, and nothing on this TOS should be construed to alter such terms, conditions, notices, and agreements.
9. PROPRIETARY RIGHTS.
a. This TOS provides only a limited license to access and use the Company Website. Accordingly, you expressly acknowledge and agree that Company transfers no ownership or intellectual property interest or title in and to the Company Website to you or anyone else.
b. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Company Website, unless otherwise indicated, are owned, controlled, and licensed by Company and its successors and assigns and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided herein, Company does not grant any express or implied right to you or any other person under any intellectual or proprietary rights.
c. Your unauthorized use of the Company Website may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. Please be aware that Company does enforce its intellectual property rights to the fullest extent of the law and, in particular and without limitation, with respect to illegal use of terms confusingly similar to any of Company’s trademarks.
d. Company also owns a copyright in the contents of the Company Website as collective work and/or compilation and in the selection, coordination, arrangement, and enhancement of the content of the Company Website. Any downloadable or printable programs, directories, databases, information, or materials available through the Company Website and all copyrights, trade secrets, and know-how related thereto, unless otherwise indicated, are owned by Company.
e. Company, the Company logo, and all other names, logos, and icons identifying Company and its programs, products, and services are proprietary trademarks of Company, and any use of such marks, including, without limitation, as domain names, without the express written permission of Company is strictly prohibited. Other service and entity names mentioned herein may be the trademarks and/or service marks of their respective owners.
10. LINKS TO OTHER SITES.
a. Company may provide links, in its sole discretion, to other sites on the World Wide Web for your convenience in locating or accessing related information, products, and services. These sites have not necessarily been reviewed by Company and are maintained by third parties over which Company exercises no control.
b. Company expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party Web sites. Moreover, these links do not imply an endorsement with respect to any third party or any Web site or the products or services provided by any third party.
11. THIRD-PARTY PRODUCTS/SERVICES.
a. Company, in its sole discretion, may post the advertisements of third parties on the Company Website and/or feature materials, programs, products, and services provided by third parties.
b. Company makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services which such third-party materials, products, and services may access.
c. Your correspondence or any other dealings with third parties found on the Company Website are solely between you and such third party.
d. Company expressly disclaims responsibility and liability for all third-party provided materials, programs, products, and services contained on or accessed through the Company Website, and you agree that Company shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Company Website.
12. INSTALLATION OF SENSORY EQUIPMENT.
a. We may need access to the physical premises of the property address you provided to the Company Website (the “Premises”).
b. If such access is needed and we have secured your agreement with such need on a specific portion of the Company Website, you hereby grant us a non-exclusive license to an install and affix sensory equipment (the “Equipment”) to the Premises, together with the right to Company, its successors, assigns, contractors, and agents, to construct, install, operate, maintain, inspect, repair, renew, remove, and relocate the Equipment and to doing anything necessary or useful or convenient in connection with the foregoing.
c. If you don’t own the Premises, you are solely responsible for securing the required permission for installation to take place on the Premises as outlined above. You may be asked to provide written evidence that you have requested and been afforded all necessary permissions to complete the installation and you should be prepared to present said evidence at any time.
d. We will make every effort to install the Equipment consistent with the aesthetics and construction of the Premises.
e. Company will provide at least 24-hour pre-installation notice at the email address provided by you during registration for the Company Website (or any updated email address provided after registration). The pre-installation email notification will include instructions for you to acknowledge receipt, such as acknowledgment by return e-mail or by electronic signature.
f. The Equipment will at all times remain the personal property of Company, its successors or assigns, and may be removed by Company upon the termination of this TOS.
WHILE COMPANY ENDEAVORS TO PROVIDE RELIABLE INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS, THE INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS AVAILABLE ON OR THROUGH THE COMPANY WEBSITE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES.
COMPANY MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE COMPANY WEBSITE OR IN THE INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS AVAILABLE ON THE Company WEBSITE AT ANY TIME AND FOR ANY REASON.
YOU ASSUME THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE INFORMATION, SERVICES, PROGRAMS, AND MATERIALS AVAILABLE ON THE COMPANY WEBSITE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE RESULTS THAT CAN BE ACHIEVED FROM OR THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, SERVICES, PROGRAMS, AND MATERIALS AVAILABLE ON THE Company WEBSITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY ENACTED BY ANY STATE.
COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE COMPANY WEBSITE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY FILES OR INFORMATION THAT YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES.
14. LIMITATION OF LIABILITY.
You expressly absolve and release Company from any claim of harm resulting from a cause beyond Company’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions.
IN NO EVENT SHALL Company BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE Company WEBSITE, WITH THE DELAY OR INABILITY TO USE THE Company WEBSITE, FOR ANY INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE THROUGH THE Company WEBSITE or for installation of the equipment, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF Company FOR ANY REASON WHATSOEVER RELATED TO USE OF THE Company WEBSITE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO company.
You agree to defend, indemnify, and hold harmless Company and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this TOS (including any failure to secure the permission required in Section 11, “INSTALLATION OF SENSORY EQUIPMENT.”
16. GOVERNING LAW.
a. This TOS has been made in and will be construed and enforced solely in accordance with the laws of the United States of America and the Commonwealth of Kentucky, U.S.A. as applied to agreements entered into and completely performed in the Commonwealth of Kentucky.
b. You acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this TOS and is hereby disclaimed.
c. For now, we provide this Company Website for use only by persons located in the United States. We make no claims that the Company Website or any of its content is accessible, appropriate or legal outside of the United States.
d. You access the Company Website on your own volition and are responsible for compliance with all applicable local laws with respect to your access and use of the Company Website.
17. RESOLUTION OF DISPUTES.
a. It is the intention of the parties to bring all disputes between or among any of them to an early, efficient and final resolution.
b. All disputes, claims and/or otherwise, including without limitation management, contract, quasi contract, equitable claims, tort claims, statutory claims or any other kind of controversy, claim or dispute shall be resolved by arbitration as provided herein. Nothing herein shall preclude any party from applying to a court of competent jurisdiction for preliminary injunctive relief or a temporary restraining order or other preliminary relief as may be required.
c. The arbitration shall be in Louisville, Kentucky and follow rules substantially similar to rules of the American Arbitration Association then in effect. The arbitration panel shall consist of one (1) individual selected by the parties. The determination by the arbitrator shall be binding upon all parties. The prevailing party shall be entitled to attorney’s fees and costs including the expense of arbitration.
18. TERM AND TERMINATION.
a. This TOS and your right to use the Company WebSite will take effect at the
moment you install, access, or use the Company WebSite and is effective until
terminated as set forth below.
b. This TOS will terminate automatically if you fail to accept this TOS.
c. Company reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOS, to deny your access to the Company Website or to any portion thereof in order to protect its name and goodwill, its business, and/or other Authorized Users.
d. This TOS will also terminate automatically if you fail to comply with this TOS,
subject to the survival rights of certain provisions identified below.
e. Termination will be effective without notice.
f. You may also terminate this TOS at any time by ceasing to use the Company
Website, but all applicable provisions of this TOS will survive termination, as
g. Upon termination, you must destroy all copies of any aspect of the Company
WebSite in your possession.
h. In addition to the miscellaneous section below, the provisions concerning
Company’s proprietary rights, indemnity, disclaimers, limitation of liability,
governing law and resolution of disputes will survive the termination of this TOS
for any reason.
b. SEVERABILITY. If any provision (or part thereof) contained in this TOS is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this TOS or your utilization of the Company Website.
c. HEADINGS. Headings herein are for convenience only.
d. NO ASSIGNMENT BY YOU. This TOS is personal to you, and you may not assign your rights or obligations to any other person or entity without Company’s prior written consent.
e. NO WAIVER. Failure by Company to insist on strict performance of any of the terms and conditions of this TOS will not operate as a waiver by Company of that or any subsequent default or failure of performance.