Terms and Conditions
1
SERVICES
1.1
Services. Weather Services International Limited
("WSI") shall provide the Customer with the services
("Services") described in the Schedule. All Services except for training and the
Metline shall be delivered to Customer electronically via a WSI website (all
such electronic deliverables hereinafter referred to as "Data") in
the form and at the times set out in the Schedule. WSI has rights to the Data. The Metline is the WSI phone briefing service
providing by a WSI forecaster. All
information and/or advice imparted during the provision of the Metline service
is hereinafter referred to as Metline Information.
1.2
Use of Services. The Customer shall have the right
to use, modify, and reproduce the Data as set out in the Schedule. The Customer agrees that all Services and
Data will be used exclusively by the Customer, its employees and officers
solely for its own internal use. The
Customer shall have no right to sublicense, redistribute, resell or retransmit
the Data to any other person (provided that if Customer is in the business of
providing pre-flight weather and aeronautical information service briefings to
pilots it may allow such pilots to view the exhibition of the Data and provided
further that Customer may distribute the Data internally to the extent
expressly provided on the Schedule). The
Customer agrees that the Data, and all data and methods used to produce the
Data and the Services, shall remain the property of WSI or its licensors. A breach of this clause would allow WSI to
terminate this Agreement.
1.3
Service Improvements. To improve the
services for all customers, WSI reserves the right to make changes from time to
time in the Services without notice to the Customer. Such action shall not constitute a breach on
the part of WSI.
1.4
Care and Skill. WSI shall take reasonable care
and skill in providing the Services to Customer.
2
CUSTOMER RESPONSIBILITIES AND ACKNOWLEDGEMENT
2.1
The Customer shall
be responsible for acquiring any necessary equipment, software and other
materials necessary to receive transmissions of the Data.
2.2
The Customer
acknowledges that the Services are wholly advisory in nature and the Customer
shall be solely responsible for all business judgments and decisions made with
respect to the Data and the Metline Information. The Customer acknowledges that WSI makes no
representations regarding the accuracy or predictive value of the Data or
Metline Information. WSI assumes no
responsibility for the accuracy of the Data or Metline Information and is not
responsible for errors resulting from omitted, misstated or erroneous
information or assumptions. The Customer
is urged to verify the Data and Metline Information against other sources prior
to use.
3 FEES AND
PAYMENT
3.1
Fees. Customer shall pay WSI the monthly fee and
other sums listed in the Schedule. Fees
payable under this Agreement are expressed as exclusive of VAT or other similar
sales tax.
3.2
Time of Payment. Customer shall pay all WSI
invoices within fifteen (15) days of the date thereof. Time
of payment of the fees is of the essence.
3.3
Late Payments. Customer shall pay interest on
late payments at a rate of 4% above the base rate of HSBC bank on all overdue payments
hereunder from the date of the invoice.
Customer agrees to indemnify WSI against any costs incurred, including
reasonable legal fees, to collect amounts owed hereunder.
3.4
Taxes. In
addition to all the payments required by this Agreement, Customer shall pay to
WSI all taxes that are applicable to the Services or measured directly by
payments made under it and are required to be collected by WSI or paid by WSI
to tax authorities of any country including VAT but exclusive of taxes on WSI's
net income.
4 TERM AND
TERMINATION The term shall be as indicated on the Schedule. The Agreement shall
automatically renew for additional one (1) year periods unless a party has
given at least thirty (30) days written notice to the other prior to the end of
the then current term. Such
termination will not prejudice WSI's rights to any amounts then due under this
Agreement.
5
INTELLECTUAL PROPERTY
5.1
All design, text,
graphics, program code and the selection or arrangement of them are the
copyright of WSI or its licensors. All intellectual property rights (including
but not limited to copyright, patents, database rights, trade marks, brand
names and company names or logos), provided or used in relation to the Services
are WSI's property or the property of their respective owners/licensors.
5.2
WSI will defend
Customer against a claim that the Services infringes a trade secret or
copyright enforceable in the United States or the United Kingdom, and WSI will
pay any resulting costs, damages, and reasonable lawyer's fees finally awarded,
provided that Customer promptly notifies WSI in writing of the claim, WSI has
sole control of the defence and all related settlement negotiations, and
Customer provides WSI with complete information concerning the claim. WSI’s liability hereunder shall not apply to
the extent that Customer has modified the Data.
5.3
WSI's obligation
hereunder is conditioned on Customer's agreement that if any part of the
Services become, or in WSI's opinion is likely to become, the subject of such
claim, Customer will permit WSI, at its option and expense, either to procure
the right for Customer to continue using the Services or to replace or modify
the same (prior to loss of use by Customer) so that it becomes noninfringing
while retaining equivalent functionality. If neither of the foregoing
alternatives is available on terms that are reasonable in WSI's judgment, this
Agreement shall terminate without further liability to either party
hereto. This clause states WSI's entire
liability for infringements of intellectual property rights of any third party.
6
WARRANTY DISCLAIMER WSI MAKES NO WARRANTY OR CONDITIONS WITH
RESPECT TO THE SERVICES AND HEREBY EXCLUDES ALL EXPRESS OR IMPLIED CONDITIONS
OR WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TORT, INCLUDING
NEGLIGENCE AND BREACH OF STATUTORY DUTY TO THE EXTENT PERMISSIBLE BY LAW. THE SERVICES ARE PROVIDED "AS IS"
AND WSI ASSUMES NO RESPONSIBILITY WITH RESPECT TO THEIR USE BY THE CUSTOMER OR
ITS EMPLOYEES OR CLIENTS.
7
LIMITATION OF LIABILITY
7.1
SUBJECT TO CLAUSE 7.5, NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, THE FORUM IN WHICH ANY LEGAL OR EQUITABLE ACTION
MAY BE BROUGHT OR THE FORM OF THE ACTION (e.g. TORT, BREACH OF CONTRACT, OR
OTHERWISE) THE CUSTOMER AGREES THAT WSI’S LIABILITY, IF ANY, TO CUSTOMER FOR
ANY LOSS, DAMAGE, EXPENSE, CLAIM OR LIABILITY OF ANY KIND CAUSED DIRECTLY OR
INDIRECTLY BY THE PERFORMANCE OR NON PERFORMANCE OF WSI’S OBLIGATIONS UNDER
THIS AGREEMENT OR BY THE NEGLIGENT ACT OR OMISSION OF WSI, SHALL BE LIMITED IN
ALL CASES TO THE AGGREGATE AMOUNT PAID BY THE CUSTOMER DURING THE PRECEDING
TWELVE (12) MONTHS PRIOR TO THE BREACH, ACT OR OMISSION OCCURRING.
7.2
SUBJECT TO CLAUSE 7.5, In no event shall WSI be liable to customer for any special,
indirect, incidental EXEMPLARY, PUNITIVE or consequential LOSS OR damage or any
loss or damage resulting from loss of use, data, business or profits, whether
in contract, tort, (including negligence) breach of statutory duty or otherwise
(whether OR not such loss or damage is reasonably foreseeable).
7.3
EXCEPT FOR WILFUL MISCONDUCT ON THE PART OF WSI,
CUSTOMER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND WSI FROM AND AGAINST
ANY AND ALL LOSSES, CLAIMS, DEMANDS, EXPENSES (INCLUDING LEGAL FEES) OR
LIABILITIES OF WHATEVER NATURE OR KIND ASSERTED BY, SUFFERED OR INCURRED BY
THIRD PARTIES ARISING OUT OF THE USE BY THE CUSTOMER OF THE SERVICES.
7.4
Subject to clause 7.5,
neither WSI nor Customer shall institute any action in any forum arising out of
this Agreement more than twelve (12) months after the cause of action has
arisen, or in the case of non-payment, more than twelve (12) months from the
date of last payment or promise to pay, except that this limitation shall not
apply to any action for payment of taxes.
7.5
Nothing in this
Agreement shall operate to exclude or limit WSI's liability for fraudulent
misrepresentation or for death or personal injury caused by its negligence.
7.6
Whilst WSI takes
every reasonable precaution and care in relation to the Services it does not
warrant that use of the Services will be uninterrupted or error free and WSI
does not accept any liability for computer service or system failure, telecommunications
failure, access delays or interruption, Data non-delivery or mis-delivery,
computer viruses or other harmful components, breaches of security or
unauthorised use of the system arising from "hacking" or otherwise.
8
NON-Inducement
of Employees Customer agrees that for the
term of this Agreement and for a period of one (1) year thereafter, it will not
entice or induce, nor attempt to entice or induce, or hire from WSI any
employee of WSI who has been engaged in the performance of Services under this
Agreement, without WSI’s express written agreement.
9
FORCE MAJEURE
9.1
WSI shall have no
liability to Customer for failure to perform any of its obligations hereunder
or otherwise due to occurrence beyond its reasonable control, including, but
not limited to, strikes, riots, wars, fire, acts of God, acts in compliance of
any law or government regulation or authority, communications failures, or acts
of any third party.
9.2
Customer
acknowledges that WSI receives certain data included in the Data from third
parties and agrees that in the event that receipt of such data by WSI is
terminated for any reason, WSI reserves the right to terminate transmission of
such data and related products hereunder without further liability to Customer.
10
DEFAULT A
party shall be deemed in default hereunder in the event that any of the
following events occur:
i
Such party
breaches any material obligation under this Agreement and such breach cannot be
remedied, or, where such breach is capable of being remedied, fails to cure
such breach within thirty (30) days after notice by the other party; or
ii
Such party makes
an arrangement or compromise for the benefit of creditors, or files a petition
for winding up, or for reorganisation or rearrangement under any bankruptcy or
insolvency law, or if any involuntary petition under any such laws is filed
against such party; or
iii
Such party is
liquidated, dissolved or otherwise goes out of business.
In addition to
any other remedies the non-defaulting party may have under this Agreement, a
party shall have the right to terminate this Agreement upon the default of the
other party hereto.
11
MISCELLANEOUS
11.1
Notices. All notices
required under this Agreement shall be made in writing personally, by
facsimile, or by certified mail, return receipt requested, is and shall be
deemed to have been properly given when delivered in person, upon electronic
confirmation when sent by facsimile or three days after being sent to the
following addresses:
|
WSI: |
Weather Services International Limited Att:
Commercial Director |
|
Customer: |
Address and Contact as specified on the Schedule. |
11.2
Waiver. Failure by WSI or Customer to enforce any
provision of this Agreement will not be deemed a waiver of that provision or of
the right to enforce it in the future.
11.3
Severability. In the event any of the
provisions of this Agreement are held by a court of competent jurisdiction to
be unlawful or unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected, impaired or
invalidated in any manner.
11.4
Assignment. This Agreement shall not be assigned by the
Customer.
11.5
Independent Contractors. The Customer
and WSI shall be independent contractors with respect to each other and this
Agreement shall not create in any manner and for any purpose any other
relationship between the parties whether as principal and agent, employer and
employee, partners or otherwise. Neither
the Customer nor WSI is authorised to enter into any agreements for or on
behalf of the other party, create any obligations, responsibilities, expressed
or implied, for on behalf of the other, or bind the other party in any manner
or thing whatsoever.
11.6
Trial services. Any Trial Services are for
purposes of demonstration and evaluation only and the Customer’s use is subject
to the Terms and Conditions herein.
11.7
Third
Party Rights. No party who is
not a party to this Agreement shall have any right to enforce it pursuant to
the Contracts (Rights of Third Parties) Act 1999.
11.8
Entire Agreement. This Agreement contains the
entire understanding of the parties and supersedes all prior understandings,
written or oral with respect to the subject matter hereof (including, but not
limited to any terms and conditions of purchase of the Customer). No waiver, alteration, or modification of any
provision hereof shall be binding unless in writing and signed by a duly
authorised representative of WSI and the Customer.
11.9
Applicable Law. This Agreement will be governed by the laws of
Weather Services International Limited.
Registered Office: