In using this weatherXchange website you will be deemed to have accepted these Conditions in relation to the Data and the Service to the exclusion of all other terms and conditions. You may not use this website if you are a broking firm or company intermediating or advising on the placement of risk without our consent and Participation as a named Broker-Advisor on this website. You may not use this website or any product of or generated by this website including without limitation any structuring tools, messaging or RFP term sheet generated on or through it, whether directly or indirectly, if not dealing with any person whose access to the website has been approved by us which, in the case of broker- firms or companies intermediating or advising on the placement of risk, will only be those listed as Broker- Advisors on the website and in the case of companies selling risk protection those listed as Protection Sellers on the website. Only users with corporate email addresses may use this site and weatherXchange reserves the right to inform the appointed representative of a company of any user using the site with that company's email address.
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 "Affiliates" means, with respect to any entity at the time in question, any other entity controlling, controlled by or under common control with such entity. For purposes of the foregoing, "control," including the terms "controlling," "controlled by" and "under common control with" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise
1.2 "Conditions" means these terms and conditions
1.3 "Data" means the meteorological data which may include historical data or forecasts or graphical outputs or documents as part of a product provided by us through this website
1.4 "Service" means our service of providing you with Data, forecasts or Web Delivered Tools through this website;
1.5 "we", "us", "our", "ourselves", "weatherXchange" means weatherXchange Limited and/or any of its affiliates of Mardall House, Vaughan Road, Harpenden, Herts, AL5 4HU
1.6 "you", "your", "yourselves", "Client" means the person, firm or corporation, using the Service and deemed to have accepted these Conditions
1.7 "Web Delivered Tools" means various software tools for viewing or processing weather data and potentially pricing weather derivatives or insurance as delivered over this web site
2. THE SERVICE
We will grant you a non-exclusive non- transferable permit for you to use the Service to view print and/or use the Data and Web Delivered Tools solely for your internal business requirements.
3. USE OF DATA, WEB-DELIVERED TOOLS & SECURITY
You may display, read and use the Service. Except as expressly provided herein and the Contract you are not permitted to lend, share, resell, re-distribute, sub-licence or allow any third party to view or use the Service or the Data or any rights in the Service or Data whether in whole or in part. You shall not copy, extract, export, insert or otherwise use the Service or Data in whole or in part unless expressly authorised by this clause 3 other than for internal purposes, provided that Data may be presented externally subject to weatherXchange clearly being shown as the source. Without limiting the generality of the foregoing you shall not use the Data or any part thereof to create or distribute any list database or other compilation regardless of whether such list database or other compilation contains more or less information than that provided by us or organize such information in the same or different manner than as received by you. You shall not use the Data or any part thereof for use for settlement of weather risk contracts i.e. Settlement Data. In respect of web-delivered software tools, you agree not to alter, enhance, make derivative works reverse engineer, use web-delivered tools by means of any automated program or expert system or electronic agent or "bot", nor give any third party access to your account .
4. SUSPENSION OF SERVICE
We reserve the right at any time to suspend provision of the Service for any reason whatsoever to any person or generally including without limitation for the purposes of repair, maintenance or support, or in the event of any actual or suspected breach of these Conditions, or if there is or we believe or suspect there is any fault in the Service or in any system used by you.
5.1 ACCURACY OF DATA
WE WILL USE REASONABLE SKILL AND CARE IN THE PRODUCTION OF THE DATA AND SERVICES AND MAKE EVERY REASONABLE EFFORT TO ENSURE THAT THE DATA IS ACCURATE, BUT WE DO NOT WARRANT OR GUARANTEE THE ACCURACY OR COMPLETENESS OF THE DATA OR SERVICES OR ITS FITNESS FOR ANY PURPOSE AND DO NOT ACCEPT ANY LIABILITY FOR ANY LOSSES INCURRED BY YOU AS A RESULT OF YOUR RELIANCE ON THE DATA.
5.2 RIGHT TO DISTRIBUTE DATA AND PROVIDE SERVICES
WE REPRESENT AND WARRANT THAT WE HAVE THE RIGHT TO DISTRIBUTE/LICENSE THE DATA TO YOU AND PROVIDE THE SERVICE TO YOU AS SET FORTH HEREIN AND YOUR USE OF THE DATA AND RECEIPT OF THE SERVICE AS PERMITTED HEREUNDER WILL NOT VIOLATE OR INFRINGE UPON ANY RIGHTS HELD BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS HELD BY ANY INDIVIDUAL OR ENTITY.
5.3 IMPLIED WARRANTIES
WE EXCLUDE ALL OTHER WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE TO THE FULLEST EXTENT PERMITTED BY LAW.
5.4. WARRANTY DISCLAIMER
THE EXPRESS WARRANTIES CONTAINED IN THESE CONDITIONS ARE IN LIEU OF ALL OTHER WARRANTIES REPRESENTATIONS AND GUARANTEES OF ANY KIND BY US. EXCEPT AS EXPRESSLY SET FORTH IN THESE CONDITIONS ALL PRODUCTS, SERVICES AND OTHER MATERIALS (IF ANY) ARE FURNISHED BY US AND ACCEPTED BY YOU "AS IS". ALL OTHER WARRANTIES WHETHER STATUTORY EXPRESS OR IMPLIED ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY US INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTIES OF OR AGAINST (1) INTERFERENCE WITH QUIET ENJOYMENT, WORKMAN LIKE EFFORT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE, COMPATIBILITY, INTEGRATION, NO ENCUMBRANCES, NO LIENS, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE (2) THAT ANY PRODUCTS, SERVICES OR OTHER MATERIALS WILL CONFORM TO ANY DEMONSTRATION OR PROMISE BY US OR (3) OR THAT MAY ARISE THROUGH ANY COURSE OF DEALING BETWEEN THE PARTIES.
WE DO NOT WARRANT THAT THE DATA, SERVICES OR ANY OTHER MATERIALS PROVIDED HEREUNDER WILL MEET YOUR REQUIREMENTS OR THAT THEIR ACCESS OR USE WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE. EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE THE ENTIRE RISK AS TO THE DATA, SERVICES AND OTHER MATERIALS PROVIDED IS WITH YOU FOR QUALITY AND PERFORMANCE AND FOR ACCURACY OR QUALITY OF ANY INFORMATION TRANSMITTED, RECEIVED OR OTHERWISE DELIVERED VIA THE PRODUCTS AND SERVICES.
YOU SHALL INDEMNIFY US FROM AND AGAINST ALL ACTIONS CLAIMS PROCEEDINGS COSTS AND DAMAGES (INCLUDING ANY DAMAGES OR COMPENSATION PAID BY US ON THE ADVICE OF OUR LEGAL ADVISORS TO COMPROMISE OR SETTLE ANY CLAIM) AND ALL LEGAL COSTS OR EXPENSES ARISING OUT OF YOUR USE OF THE WEBSITE AND ANY BREACH BY YOU OF ANY OF THESE CONDITIONS.
6.1 EXCLUSION OF INDIRECT DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION FOR LOSS OF PROFITS, FOR LOST SAVINGS, LOST DATA OR OTHER SPECIAL DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS CONTRACT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS CONTRACT OR THE USE THEREOF EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
6.2 ABSOLUTE CAP ON LIABILITY
THE MAXIMUM AGGREGATE LIABILITY OF US UPON ANY CLAIM HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE PRODUCTS, SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT (WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY YOU UP TO THE AMOUNT PAID BY YOU TO US FOR THE APPLICABLE DATA AND / OR SERVICES.
6.3 BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE
YOU ACKNOWLEDGE THAT WE ARE PROVIDING THE SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH IN THESE CONDITIONS AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THE LIMITATION OF LIABILITY SPECIFIED IN THESE CONDITIONS WILL SURVIVE AND APPLY EVEN IF THE WARRANTY DISCLAIMER OR ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
7. PROPRIETARY RIGHTS
Any and all proprietary rights in the Data and the Service are owned by Us or by our licensors and are subject to copyright and other intellectual property rights protection.
7.2 Retained rights
Nothing in these Conditions transfers to you the copyright or database rights or any other intellectual property rights in the Data or in any Web Delivered Tools, software, software tools, design concepts, know-how, techniques or methodologies which we use in providing the Service and the Data, the ownership of which remains absolutely with us.
7.3 Enforcement of rights
You will give us any assistance we may reasonably require to enable us to obtain, defend and enforce the proprietary and intellectual property rights in the Data, the Web Delivered Tools and the Service.
No failure or delay by either party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or some other right, power or remedy.
Each party acknowledges that its employees and agents may be exposed to or acquire confidential or proprietary information concerning the other party's products or customers or business. Each party agrees to hold such confidential or proprietary information in strict confidence. We agree, except as required by law, not to use such information for any purpose other than providing the Service to you hereunder.
The following is not Confidential Information: Information that: is or becomes publicly available without a breach of these Conditions; was lawfully known to the receiver of the information without an obligation to keep it confidential; is received from another source who can disclose it lawfully and without an obligation to keep it confidential; is independently developed; or is a comment or suggestion one party volunteers about the other's business, products or services.
8.3 Entire agreement and variation
These Conditions supersede all prior agreements, arrangements, representations and understandings between you and us and constitute the entire agreement between you and us relating to the Service. Nothing in this Condition or elsewhere in these Conditions is intended to prevent either you or us taking action in respect of pre-contract misrepresentations made fraudulently, if any, upon which either you or we relied in circumstances where it was reasonable to rely. We may vary these Conditions at any time for whatever reason provided we publish such varied conditions on this website.
You may not assign, transfer, sub-contract or sub-license your rights or obligations under these Conditions or sell-on or share any Data, whether in whole or in part, without first obtaining our written consent.
The headings to these Conditions are for ease of reference only, and do not affect the interpretation or construction of these Conditions.
If any (or any part) of these Conditions are, for any reason, held to be unenforceable, illegal or invalid, that unenforceability, illegality or invalidity will not affect any other conditions (or parts) which will continue in full force and effect.
8.7 Force majeure
We exclude all liability for any delay in performing or failure to perform our obligations hereunder caused by circumstances beyond our reasonable control.
8.8 No third party rights
These Conditions expressly exclude any rights granted to any third party under the Contracts (Rights of Third Parties) Act 1999.
These conditions and their application shall be governed by and construed in accordance with the laws of England and Wales. The English Courts shall have exclusive jurisdiction to deal with any dispute that arises out of or in connection with these Conditions
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