Event Weather Detailed Terms Of Use

1. Definitions

In the Subscription Agreement and these Detailed Terms of Use, unless the contrary intention is stated:

• "Agreement" means:
  • in the case of a Licensee that has executed the Subscription Agreement, the Subscription Agreement including these Detailed Terms of Use; and
  • for all other Licensees, these Detailed Terms of Use.
• "Application Service Provision" means using software to obtain commercial benefit by charging for or giving access to web sites or web services;
• "Claims" means actual or alleged claims, expenses, losses or damages of any kind or character whatsoever including without limitation special, direct, indirect, punitive or consequential damages, whether in contract, tort or otherwise, or whether to or in connection with a person, property, reputation or an intangible matter;
• "Commencement Date" means:
  • in the case of a Licensee that has executed the Subscription Agreement, the date so defined in the Subscription Agreement; and
  • for all other Licensees, the date on which the Licensee has agreed to be bound by these Detailed Terms of Use by clicking the accept check-box on the payment confirmation webpage for the Service;
• "Date" means a date as selected by Licensee using the date selection tool on Event Weather's website;
• "Detailed Terms of Use" means these detailed terms of use;
• "Documentation" means Event Weather’s printed and electronic materials concerning the Service including configuration documents, user guides, FAQs, reference documents, training documents and marketing materials;
• "Event Weather" means Event Weather Pty Ltd ACN 129 114 905;
• "Event Weather Parties" means Event Weather, its officers, employees, shareholders, contractors, agents, distributors, affiliates and related bodies corporate, and "Event Weather Party" means any one of them;
• "License" means the license as granted to Licensee pursuant to clause 5;
• "Licensee" means:
  • in the case of a person or organisation (other than Event Weather) that has executed the Subscription Agreement, that person or organisation;
  • for all other persons, the person or organisation who has agreed to be bound by these Detailed Terms of Use by clicking the accept check-box on the payment confirmation webpage for the Service;
• "Licensee Parties" means Licensee, its officers, employees, shareholders, contractors, agents, distributors, affiliates and related bodies corporate, and "Licensee Party" means any one of them;
• "Location" means a location as selected by Licensee using the location selection tool on Event Weather's website;
• "Parties" means Event Weather and Licensee and their successors and assigns as permitted pursuant to these Detailed Terms of Use;
• "Prediction" means an estimated numerical value generated by the Service;
• "Service" means the online weather prediction service owned and operated by Event Weather;
• "Software" means the proprietary software technology of Event Weather used to access and deliver the Service, delivered in any media or format, including Event Weather's web pages, web clients, weather analysis and prediction tools and algorithms, business rules and configurations and all software code, source code, object code, binary code, executable code, libraries, models, schemas and graphic designs, and all accompanying or associated media.
• "Subscription Agreement" means the document entitled "EVENT WEATHER SUBSCRIPTION AGREEMENT" executed between a Licensee and Event Weather;
• "Term" has the meaning as defined in term 6;
• "Use" means the uses referred to in term 8; and
• "Weather Element" means each of the following weather elements:
  • 3pm Relative Humidity, being the relative humidity at 3:00pm at a Location on a Date, expressed as a percentage of the water vapour pressure in the air and the saturation vapour pressure at the Location given the 3pm Temperature at that Location on that Date;
  • 3pm Temperature, being the temperature at 3:00pm at a Location on a Date, in degrees centigrade;
  • 3pm Wind, being the mean wind speed at 3:00pm at a Location on a Date, in kilometres per hour;
  • 9am Relative Humidity, being the relative humidity at 9:00am at a Location on a Date, expressed as a percentage of the water vapour pressure in the air and the saturation vapour pressure at the Location given the 9am Temperature at that Location on that Date;
  • 9am Temperature, being the temperature at 9:00am at a Location on a Date, in degrees centigrade;
  • 9am Wind, being the mean wind speed at 9:00am at a Location on a Date, in kilometres per hour;
  • Maximum Temperature, being the maximum temperature at a Location during the 24 hour period of a Date, in degrees centigrade;
  • Minimum Temperature, being the minimum temperature at a Location during the 24 hour period of a Date, in degrees centigrade; and
  • Rainfall, being the rainfall at a Location during the 24 hour period of a Date, in millimetres as measured using a standard rain gauge, where "rainfall" means any or all of the forms of water, whether liquid (e.g. rain, drizzle) or solid (e.g. hail, snow) that fall from a cloud or group of clouds and reach the ground.

2. Interpretation

References in these Detailed Terms of Use and the Subscription Agreement to:

• "clauses" are references to clauses in the Subscription Agreement;
• "terms" are references to terms in these Detailed Terms of Use; and
• "Schedule" are references to schedules in the Subscription Agreement.

3. Changes to these Detailed Terms of Use

Event Weather reserves the right to revise these Detailed Terms of Use at its discretion. Although Event Weather may attempt to notify Licensee when major revisions are made, Licensee must periodically review the most up-to-date version by visiting Event Weather’s website.

At all times, the version of these Detailed Terms of Use which has the most recent date as published on Event Weather's website shall be binding and supersede all prior versions.

4. Inconsistency between Subscription Agreement and Detailed Terms of Use

If there is any inconsistency between these Detailed Terms of Use and the Subscription Agreement then these Detailed Terms of Use shall prevail, except that where the Subscription Agreement expressly states that a specific clause of that document takes precedence over these Detailed Terms of Use then that specific clause shall prevail to the extent of the inconsistency.

5. Grant of License

Event Weather grants to Licensee a limited royalty-free, non-exclusive, non-transferable, revocable license for the Term to Use the Service, Predictions and the Documentation solely for Licensee’s lawful use in accordance with the Agreement.

6. Term and expiry of License

The License shall commence on the Commencement Date and:

• in the case of a Licensee that has executed the Subscription Agreement, the Term shall be the period ending on the day the Licence expires (as set out in the Subscription Agreement) or is terminated, whichever is earlier; or
• for all other Licensees, the Term shall be the period ending on the day before the anniversary of the Commencement Date or the day the License is terminated, whichever is earlier.

7. License fees and payment terms

• A Licensee that has executed the Subscription Agreement agrees to pay to Event Weather all fees and charges in the amounts and with the frequency as set out in the Subscription Agreement.
• Every other Licensee agrees to pay to Event Weather all fees and charges as set out on Event Weather's website, and payment must be made before a Prediction will be generated and delivered to Licensee.

8. Ownership of the Service, Software and Documentation

Licensee agrees that:

• Event Weather owns all title, ownership and proprietary rights, including all copyrights, patents, trademarks, trade secret rights, domain name and moral rights (registered, unregistered, registrable or unregistrable), in and related to the Service, Software, Documentation and to every Prediction;
• the License is not a sale of the Service, the Software, the Documentation or a Prediction nor a waiver of any rights of Event Weather;
• the License is specific to Licensee and does not include rights to sublicense;
• the License may not be assigned (by operation of law or otherwise) or transferred by Licensee without the prior written consent of Event Weather.

9. Permitted Uses of Predictions, Service, Software and Documentation

• A Licensee that has executed the Subscription Agreement may use and access the Service, Predictions and the Documentation as expressly permitted in the Subscription Agreement.
• Every other Licensee may access the Service via the Internet and use the Service to generate a Prediction for a Weather Element for a Date at a Location, and may use such a Prediction and the Documentation solely for Licensee’s personal non-commercial use.

10. Excluded Uses of Predictions, Service, Software and Documentation

Except as expressly permitted in the Agreement Licensee must not, without the prior written consent of Event Weather:

• use the Service, a Prediction, the Software or the Documentation for commercial purposes or commercial gain;
• sell, market, license, sublicense, lend, loan, distribute, transmit, rent, lease, upload, post, electronically transfer or otherwise transfer or deal with the Service, a Prediction, the Software or the Documentation;
• utilise the Service or a Prediction to offer a product or service that competes in any way with the Service;
• use the Service, the Documentation or Predictions in connection with Application Service Provision or to offer a commercial service such as a data processing, bureau or prediction service;
• display or make accessible to the general public, in whole or in part and in any medium, the Service, a Prediction, the Software or the Documentation;
• directly or indirectly permit any third party to use, access or copy the Service, a Prediction, the Software or the Documentation;
• disclose the email address or password allocated to Licensee for access to the Service to any other person;
• use the Service, the Software or the Documentation or a Prediction for any activity that breaches any laws or infringes a third party's rights;
• reverse engineer, decipher, modify or disassemble the Software;
• interfere or attempt to interfere in any manner with the proper workings of the Software or the Service; or
• lodge any patent application or any other application for the statutory or registered protection of any of the Service, the Software or a Prediction.

11. Limitations of the Software, the Service and Predictions

Although Event Weather believes that Predictions are reasonably made when generated by the Service, Licensee agrees and acknowledges that:

• weather forecasts and predictions are subject to inherent uncertainty and will contain some degree of inaccuracy;
• Predictions may only be used as an informational aid and may not reflect actual or future meteorological conditions;
• the Service can only be used to generate a Prediction in relation to a day that is no more than 364 days in advance of the day on which the prediction is sought to be generated; and
• a Prediction in relation to a Location may only be interpreted as a Prediction in relation to the general geographical region in which a Location is located, and that the predicted weather and the actual weather at specific locations may be different from those Predictions.

12. Other Limitations

Licensee agrees that:

• the Use of the Software, Service, Documentation and any Predictions by Licensee is subject to all limitations, disclaimers, exclusions, exceptions and service level qualifications imposed by third party providers of data utilised by the Software or the Service, including the disclaimers at the Australian Bureau of Meteorology's website and in the data access agreement available there;
• the Use of the Software and Service by Licensee is critically subject to availability of a connection to the Internet by Licensee, which connection cannot be controlled by Event Weather in any way whatsoever;
• it assumes all risks associated with use of the Internet including the risk of Licensee's computer systems or data being damaged by a virus, disabling codes, worms or other devices which might be transmitted or activated via the Internet or by Licensee accessing the Service, or by transmissions to and from the Service being intercepted and modified or exploited by third parties;
• links to external websites on Event Weather's website do not constitute endorsement by Event Weather of those websites or the information, products or services contained therein or the people who operate those sites; and
• links to Event Weather's website on external websites does not constitute endorsement by Event Weather of those websites or the information, products or services contained therein or the people who operate those sites.

13. Licensee’s additional responsibilities

Licensee agrees that it is responsible for:

• correctly choosing the Dates and Locations for which Licensee wishes to generate Predictions using the Service;
• ensuring that its computer network and communications systems are suitably specified, configured, maintained and operated to enable it to Use the Service. Event Weather reserves the right to specify minimum computer network and communications specifications to Use the Service;
• maintaining the confidentiality and use of all email addresses and passwords provided by Event Weather for access to the Service; and
• ensuring that security measures are in place to prevent any unauthorised access to or Use of the Service or the Documentation utilising Licensee’s computer network or passwords allocated to Licensee.

14. Warranties

• Other than as expressly provided in this Agreement, the Service, the Documentation and any Predictions are licensed to Licensee on an "as is" basis and, to the maximum extent permitted by law, without:
  • any warranties or terms of any kind, either express or implied, including warranties of title, non-infringement, merchantability or of fitness for any particular purpose; and
  • any warranties as to accuracy, completeness or currentness;

  with respect to the Software, the Service, the Documentation, any Predictions or any related services or items.

• Without limiting the foregoing, Licensee is responsible for the supervision, management and control of its Use, and Use by any Licensee Party, of the Service, the Documentation and Predictions.
• Event Weather does not warrant that the Software, the Service, the Documentation, Predictions or any related services or items will meet Licensee’s requirements or that Use of the Service by Licensee or by Event Weather will be uninterrupted, error-free or free from unauthorised access or interruption by external parties or that defects in the Service, Software or Documentation will be corrected. Event Weather does not warrant that the Service or Software is free of any harmful components.
• Licensee warrants and acknowledges that the Service is not fault tolerant and is not designed or intended for use in connection with life saving, life critical emergency response, insurance underwriting, critical health and safety or online control equipment in hazardous environments that require failsafe performance.

15. Limitations on Liability

• To the maximum extent permitted by law the Event Weather Parties each disclaim all liability whatsoever for, and under no circumstances shall be liable to Licensee or any other entity for Claims arising out of or relating to,:
  • this Agreement or
    the Use, inability to Use, performance or non-performance, delivery or non-delivery, or failure of the Software, the Service, the Documentation or any Prediction and/or related products and services; or
  • any decision made or action taken by Licensee or any other entity in reliance on any Prediction; or
  • the negligence or acts or omissions of an Event Weather Party, whether or not foreseen or foreseeable and even if Event Weather is advised of the possibility of such Claims.

    In all cases, Event Weather’s entire liability under the Agreement shall be limited, at Event Weather’s sole discretion, to

    correcting and resupplying the Service, the Documentation and Predictions that Event Weather is obliged to supply under this Agreement, or

• refunding the license fees paid by Licensee for the Service, Documentation and Predictions, provided that in those circumstances the Licence will be treated as terminated.
• Licensee agrees that the total cumulative liability of the Event Weather Parties from all causes of action of any kind, including, but not limited to, contract, tort, strict liability, breach of warranty, misrepresentation, or otherwise, shall not exceed the amounts paid for the Licence by Licensee.

16. Indemnity

Licensee agrees to indemnify, defend and hold each of the Event Weather Parties harmless from and against any and all Claims of any kind whatsoever (along with legal fees and litigation costs) arising directly or indirectly out of, resulting from, or in connection with, the Licensee’s use or misuse of the Service, the Documentation or a Prediction or Licensee’s breach of the Agreement or the negligence or acts or omissions of any of the Licensee Parties.

17. Force Majeure

Event Weather shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Service or Predictions caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law, fire, flood, earthquake, storm, power failure, telecommunications failure or failures of the Internet.

18. Termination

The Agreement may be terminated by:

• Licensee notifying Event Weather in writing that it wishes to discontinue Use of the Service and Documentation and to terminate the License (and in which case the Agreement will be deemed terminated);
• Event Weather notifying Licensee that it is discontinuing the Service (which shall be at its discretion);
• Event Weather notifying Licensee of receipt from third parties of a claim of intellectual property infringement relating to Use by Licensee of the Service, the Documentation or a Prediction;
• a Party electing in writing to terminate the Agreement following a material breach of the Agreement by the other Party where that breach is not cured within fourteen (14) days of written notice from the first mentioned Party; or
• a material breach of the Agreement by a Party which is impossible to cure.

19. Required Action on Termination or expiry of the License

Upon termination of the Agreement or expiry of the License Licensee must:

• immediately pay to Event Weather all fees and charges payable and outstanding under the Agreement;
• cease Use of the Service, the Documentation and any Prediction;
• promptly destroy all confidential information of Event Weather, Predictions, the Documentation and all materials and documentation related to or supplied with the Service, in any form, including any whole or partial copies; and
• clear all clientside data caches used by or relating to the Service.

20. Dispute resolution

• If any dispute arises between the Parties about any matter related to the Agreement the Parties agree to negotiate in good faith to resolve the dispute and, if necessary, involve an executive officer of each Party directly in the negotiations.
• If the dispute has not been resolved by those negotiations within 30 days, the Parties must refer the dispute to the Australian Commercial Disputes Centre Limited for mediation in Perth in accordance with its Mediation Guidelines and which guidelines are deemed to be included in the Agreement.
• If the dispute is not resolved by mediation, the dispute must be referred to the Australian Commercial Disputes Centre Ltd for arbitration in Perth in accordance with its Arbitration Rules. Any arbitration shall be final and binding on the Parties, including any award as to costs, provided that nothing in this term shall prevent either party from seeking urgent interlocutory relief. The arbitration and the decision of the arbitral tribunal will be confidential.

21. Use of information

Licensee agrees that Event Weather may use information concerning the license granted to Licensee or gathered by Event Weather in connection with the Licensee's Use of the Software or Service, including information concerning configuration, installation or deployment of the Software or Service, for Event Weather's support, technical development, product development and marketing purposes, provided that Event Weather will not disclose any information that is identifiable as information relating to, or could identify, the Licensee without Licensee's consent

22. Entire Agreement

The Agreement constitutes the sole and entire agreement of the Parties as to the subject matter set forth in the Agreement. The Agreement supersedes any previous agreements, understandings and arrangements between the Parties relating to that subject matter. The Agreement also supersedes and takes precedence over any terms on Licensee's purchase order.

23. Modifications

Any modifications or amendments to the Agreement must be in writing and signed by an authorised representative of each Party.

24. Remedies

Licensee agrees that any breach of the Agreement by Licensee may cause irreparable damage and that, in the event of such breach, in addition to all remedies at law, Event Weather has the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or undertaking or proving injury as a condition for relief.

25. GST

• In this term 24 “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999, and a reference to payment being made or received includes a reference to consideration other than money being given or received.
• Licensee must pay to Event Weather, on each date Licensee must make payment for a taxable supply under the Agreement, an additional amount equal to the GST payable on the taxable supply or component of the supply for which that payment is made.

26. Notices

Any communication under or in connection with this document:
must be in writing and:

• must be addressed to the address appearing in the Subscription Agreement (if a Subscription Agreement has been signed), or as otherwise notified by a Party to the other Party from time to time:
• must be signed by the Party making the communication or by any attorney, director, secretary or authorised agent of that Party;
• must be delivered or posted by prepaid post to the address, or sent by fax to the number, of the addressee, in accordance with (a); and
• will be deemed to be received by the addressee:
  • (in the case of prepaid post) on the third business day after the date of posting to an address within Australia, and on the fifth business day after the date of posting by airmail to an address outside Australia;
  • (in the case of fax) at the local time (in the place of receipt of that fax) which then equates to the time at which that fax is sent as shown on the transmission report which is produced by the machine from which that fax is sent and which confirms transmission of that fax in its entirety, unless that local time is on a non business day, or is after 5.00 pm on a business day, when that communication will be deemed to be received at 9.00 am on the next business day; and
  • (in the case of delivery by hand) on delivery at the address of the addressee as provided in (b), unless that delivery is made on a non business day, or after 5.00 pm on a business day, when that communication will be deemed to be received at 9.00 am on the next business day.

27. General

• If any provision of the Agreement is held to be unenforceable in any jurisdiction for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances or jurisdictions, or of the remaining provisions hereof under all circumstances or jurisdictions.
• Neither Party is authorised to bind the other and neither Party shall act as the agent or legal representative for the other without prior written agreement.
• Any failure by a Party to strictly enforce any provision of the Agreement does not operate as a waiver of that provision or any breach of that provision.
• The Agreement may be assigned or transferred by Event Weather.
• The Agreement will be governed by the laws of Australia and the laws of the State of Western Australia, without regard to conflicts of laws principles, and any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in Western Australia and the parties submit to the jurisdiction of such courts for the purposes of any action or proceeding.
• The Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
• The provisions of terms 1, 2, 3, 4, 7, 8, 14, 15, 16, 19, 20, 21, 22 and 27 shall survive expiry of the License and termination of the Agreement.

28. Data Source

• Our weather information is based on data supplied by the following organisations:
  • Australian Bureau of Meteorology (BoM)
  • National Oceanic and Atmospheric Administration (NOAA)
  • Japan Meteorological Agency (JapMet)
  • World Meteorological Organization (WMO)
  
• All forecasts/predictions are approximate and must be considered as a guide only. Event Weather Pty Ltd is privately run and not affiliated with BoM, NOAA, JapMet and the WMO. Event Weather Pty Ltd assumes no liability for damages arising from the use of any of the forecasts/predictions found on our website. Although we believe the information on this website to be correct, we do not accept any responsibility for any errors, omissions, loss or damages incurred by anyone, either directly or indirectly as a result of reliance on this information, and the information is used at the risk of the user. The information on this website is distributed in the hope that it will be useful, but without any warranty; without even the implied warranty of merchantability or fitness for a particular purpose. Information from this website must not be used in emergency situations. Users are encouraged to check with their local emergency service or organisation to obtain this data.