Terms of Service
These Terms of Service constitute the agreement ("Agreement") between NextStorm, Inc. ("we," "us" or "NextStorm") and the user ("you," "user", "Customer" or "Subscriber") of NextStorm's weather data services and any related products or services ("Service"). This Agreement governs both the Service and any consulting, training, or professional services agreed to by NextStorm and the Customer. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE LEGALLY AUTHORIZED AND ABLE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.1(a) Month to Month Term. Service may be offered on a monthly basis as is determined in your Service Activation or Order Form, or via our online ordering process. The term begins on the date that NextStorm activates your Service and ends when you terminate the service as outlined in this Agreement. Subsequent monthly terms of this Agreement automatically renew on a monthly basis unless you give us written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current month, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month's charges in the event that you do not provide the requisite ten-days notice of termination. Termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
1.1(b) Multi-Month Term. Service may be offered on a multi-month basis as is determined in your Service Activation or Order Form, or via our online ordering process. The term begins on the date that NextStorm activates your Service and you are able to retrieve the data and initial software is complete to display the data internally for your review (“Service Activation Date”) and ends on the day before the anniversary date of your Term. You will notify us in writing via email when the Service Activation Date begins. Subsequent terms of this Agreement automatically renew on an equivalent multi-month commitment unless you give us written notice of non-renewal at least thirty (30) days before the end of the term in which the notice is given. You are purchasing the Service for a full multi month period, meaning that if you attempt to terminate Service prior to the end of a multi-month term, you will be responsible for the full term's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full term's charges in the event that you do not provide the requisite thirty-days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
1.1(c) Evaluation Period. For each Service ordered and upon the Service Activation Date, You may test, develop and evaluate the Service for a period of ninety (90) days (“Evaluation Period”). You may terminate this Agreement at any time during the Evaluation Period by giving NextStorm written notice of termination.
1.2 Use of Service. We grant you the non-exclusive, worldwide license to evaluate and test the Services and Software and incorporate the weather information and data generated from the Services in your weather-related products and services. Except as provided above, You shall not resell or transfer the Service to another party without our prior written consent. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned activities.
1.3 Unlawful Use. You shall use the Service only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service for an unlawful purpose. In the event of such termination, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service.
1.4 Copyright; Trademark; Unauthorized Usage of Software.
1.4(a) Copyright; Trademark. The Service and any software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
1.4(b) Unauthorized Usage of Software. You have not been granted any license to use the software used to provide the Service or provided to you in conjunction with providing the Service, other than a nontransferable, revocable license to use such software, and the data provided by the software strictly in accordance with the terms and conditions of this Agreement. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the software or the data provided as part of the Service under this Agreement.
1.5 Tampering with the Service. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
1.6 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
1.7 Service Distinctions. The Service is provided on a best efforts basis.
2. CHARGES; PAYMENTS; TAXES; TERMINATION.
2.1 Billing. When the service is activated, you must provide us with a valid billing contact name, address, telephone number, and email address. We will bill all charges, applicable taxes and surcharges monthly in advance on the 1st day of the month (except for usage-based charges if applicable, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears), including but not limited to: activation fees; monthly Service fees; advanced feature charges; and termination fees. The amount of such fees and charges may change from time to time. Notification of monthly invoices will be sent to the billing address on file and may be sent to you via your email address on file with us. You are responsible with providing current billing information to NextStorm.
2.2 Billing Disputes. You must notify us in writing within 30 days after receiving your invoice if you dispute any NextStorm charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to our customer service address as provided on our web site: nextstorm.net.
2.3 Payment and Collection.
2.3(a) Payment. Payment of invoiced charges are due by the 15th day of the billing month (standard terms) unless we agree to non standard billing terms in your Service Activation or Order Form. We may terminate your Service at any time in our sole and absolute discretion if any invoice is 30 days or more past due.
2.3(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney's fees.
2.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service for your breach of this Agreement following a 30 day cure period which will allow you to cure any breach . If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable.
2.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service, except any taxes on the net income of NextStorm. Such amounts are in addition to payment for the Service and will be invoiced as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
3. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES.
3.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of the service that is caused by any of the following: an act or omission of an underlying service provider, vendor or other third party; equipment, network or facility failure; equipment, network or facility upgrade or modification; force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; equipment, network or facility shortage; equipment or facility relocation; service, equipment, network or facility failure caused by the loss of power to you; outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party; any act or omission by you or any person using the Service; or any other cause that is beyond our control, including, without limitation, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed, or forwarded. Except for NextStorm’s infringement indemnity obligation, our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
3.2 Disclaimer of Liability for Damages. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL NEXTSTORM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
3.3 Indemnification and Survival.
3.3(a) Indemnification. NextStorm shall defend, indemnify, and hold harmless you, your officers, directors, employees, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees) as a result of our breach of the warranties specified in 3.4 below.
3.3(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
3.4 Warranties on Service. NextStorm represents and warrants (a) that it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (b) that this Agreement has been duly executed and delivered by NextStorm; (c) that NextStorm shall provide the Services and in a workmanlike manner consistent with the highest professional standards commonly associated with those companies providing the same or similar type of services in the weather and software industry, using experienced, qualified, competent and trained personnel; (d) that the execution, delivery and performance of its obligations under this Agreement by NextStorm does not and will not (i) conflict with or give rise to a default under any other agreement where NextStorm is a party or by which it is bound; or (ii) violate any applicable law, regulation, judgment or other legal requirement; (e) that the Software or Service does not contain any viruses, worms or other malevolent code; and (f) that it has the right, title and interest to provide the Services and Software to you without infringement of the intellectual property rights, or any other rights of any third party. If any use of the Software or performance of the Services infringes upon any such third party intellectual property rights, then NextStorm shall promptly (a) alter or replace the Software or other or Services so that they cease to infringe such third party rights with no loss of features or functionality; or (b) obtain such license or licenses as may be necessary, in each case, so that the use of the Software or Services as permitted by this Agreement shall not infringe such third party rights. EXCEPT FOR THE FOREGOING, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER NEXTSTORM NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR FACILITIES OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXTSTORM'S NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE BY NEXTSTORM OR NEXTSTORM'S AGENTS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. Notwithstanding anything to the contrary herein, NextStorm makes no express or implied warranties, guarantees, or affirmations that weather information will occur or has occurred as the reports, forecasts, data, or information state, represent or depict and it shall have no responsibility or liability whatsoever to you or any other person or entity, parties and non-parties alike, for any inconsistency, inaccuracy, or omission for weather or events predicted or depicted, reported, occurring or occurred.
3.5 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
3.6 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using the Service. You shall assure that your and your customer's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your use or content.
4.1 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the State of Delaware without regard to its conflict of law provisions. You shall submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware and waive any objection as to venue or inconvenient forum.
4.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any employee of you and us arising out of or relating to the Service will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Delaware. The arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, DELAWARE.
4.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
4.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services provided by us constitute the entire agreement between you and NextStorm and govern the use of the Service by you, members of your business, and employees. This Agreement supersedes any prior agreements between you and NextStorm and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
4.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
5. FUTURE CHANGES TO THIS AGREEMENT. We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on nextstorm.net. NextStorm will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. NextStorm may assign this Agreement at any time. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service.
6. PRIVACY. NextStorm Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. NextStorm is not liable for any lack of privacy that may be experienced with regard to the Service. We don't share your private information with third parties without your permission.
7. Last Updated: January 20, 2016.
8. NextStorm is a trademark owned by NextStorm, Inc.