HWdb Update Service Usage Agreement

 

1.0 Definitions.

 

1.1.      “Customer” includes but is not limited to the person and/or organization who subscribes to the HWdb Update service, downloads or receives databases available from the HWdb Update service.

1.2.      “Databases” includes but is not limited to all supporting data files and data structures that are made available through the HWdb Update to a customer.

1.3.      ”Password” includes but is not limited to the password used by the customer to access and download the databases.

1.4.      “HAMweather" is all files included with the HAMweather distribution archive as well as all files produced as a result of the installation scripts. The " HAMweather" also includes the HAMweather name and logo included with the HAMweather package. The provisions of this License Agreement applying to the " HAMweather " also apply to all derivative works of the " HAMweather." The actual Forecasts used and output by HAMweather are Public domain and cannot be copyrighted.

1.5.      "HAMweather, LLC" is HAMweather, LLC, Woodstock, Georgia, which is the sole owner of the copyright and all other rights in and to the Databases.

2.       Scope of services.

2.1.      Access to Databases.

2.1.1.    HAMweather, LLC will allow the customer access to the databases via the HTTP protocol to obtain the most current databases for use by the customer’s HAMweather installation.  Access will be granted only during the customers subscription period.

2.1.2.    HAMweather, LLC does not provide the customer with access to the internet, which is needed to access the databases.  The customer must provide their own internet connection and assume all costs and obligations to reach the databases via the http protocol.

2.2.      Updated Notices via email. HAMweather, LLC will provide notification via email to the customer when any of the databases have been updated.

2.3.      Support, HAMweather, LLC can be reached via email or online web support forum (preferred option) in the event that support is needed in accessing the databases or with instructions on installing the databases. HAMweather, LLC under this agreement does not provide troubleshooting or maintenance of your HAMweather installation.

3.       Permitted Uses.

3.1.      The customer may download or receive the databases during the customer’s subscription period only.

3.2.      The databases are to be used only for the purposes of installing in the customer’s HAMweather installation.  The customer may continue using the installed databases even after their subscription period has expired.

3.3.      The customer may retain copies of the databases for archival purposes provided that this archive is not redistributed in any way.

3.4.      The customer may modify the databases for use with HAMweather only.

4.        Prohibited Uses.

The customer agrees not to do any of the following unless previously authorized in writing by HAMweather, LLC, as doing any of the following would violate this usage agreement and be grounds for termination of this agreement and possible legal action as described in this agreement.

4.1.      Making available for download or otherwise copying or redistributing the databases or password.

4.2.      Selling, renting or leasing the databases or password to any individual or organization.

4.3.      Including on any distribution medium (such as, but not limited to, a CD-ROM or bundled with in a software package) the databases or password.

4.4.      Using the databases or derivatives works made from the databases for purposes other than use with HAMweather.

5.       Payment Terms

5.1.      Subscription Fee. The customer will pay HAMweather, LLC a one time fee according to HAMweather, LLC’s Subscription fee schedule and based on  the subscription you choose.

5.2.      Subscription Service Begin Date. Access to the databases will begin with-in 24 hours of receipt of the subscription fee payment.

5.3.      Subscription renewal. HAMweather, LLC will not renew subscriptions upon expiration. It is up to the customer to renew their subscription and pay the corresponding subscription fee for the new subscription.

5.4.      Cancellation. In the event that you cancel your subscription, you will be charged in full for the entire month or period in which you canceled your service. HAMweather, LLC retains the right to charge an administration fee and deduct the administration fee from any prorated refunds before returning them to you. 

5.5.      Breach. In the event that HAMweather, LLC terminates this agreement because of a breach, you will be charged in full for the entire month or period in which your service is terminated. HAMweather, LLC retains the right to charge an administration fee and deduct the administration fee from any prorated refunds before returning them to you. 

5.6.      Tax. All fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, except that your income taxes and any sales or similar taxes on the sale of the Customer products and services to end users shall be the sole responsibility of the Customer. 

5.7.      The customer agrees to pay all fees by the due date on invoices sent by us whether the invoice is sent by electronic mail, facsimile, or by US Postal mail.  Access to the databases will not be provided until fees are paid.

5.8.      You authorize us to debit the credit card used for payment if you choose to pay for your services using Credit Card as a form of payment for services rendered. You agree that you have full rights to use the credit card supplied for payment of your services.

5.9.      All costs associated with disputed credit card charges, including but not limited to fees assessed by our banking institutions for processing such disputes will be your responsibility, unless the charge being disputed was due to negligence on our part such as accidental charges to a credit card. An Administrative fee for such disputes that are not due to negligence on our part may be assessed and added to your account balance by us. 

5.10.   All costs associated with returned checks will also be your responsibility and such charges will be added to your account balance.  An Administrative fee for such returned checks may be assessed and added to your account balance by us.

5.11.   In the event, it is necessary to refer your account to a collection agency in the United States or in your country of origin, a collection fee will be applied to your account by such agency for their services.  This fee is in addition to the amount being collected as an outstanding balance on your account, and is payable in full.  Failure to pay an outstanding balance may be reported to any and all credit reporting agencies according to the laws governing such action within the United States and/or your country. Any and all fees associated with the collection of your account, including expenses incurred by us will be passed on as part of the outstanding debt owed including but not limited to costs for long distance phone calls, fax charges, court appearances, and attorney fees as it relates to the collection of your account.

6.        Representations and Warranties.

HAMweather, LLC’s obligations under this Agreement are conditioned upon the following representations and warranties:

6.1.      Compliance with Law. The customer represent and warrant that you will comply with all applicable state and federal laws and foreign trade agreements in your performance of this agreement and in the use and operations of the databases, including laws governing technology, software and trade secrets. International copyrights and treaties apply.

6.2.      Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.

6.3.      Our Performance. We represent that our services shall be performed in a professional and workmanlike manner, and the database service will be operated in accordance with our obligations as defined by this Agreement.

6.4.      Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAMweather, LLC, DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED. PARTICULARLY, HAMweather, LLC MAKES NO WARRANTY OF TITLE, NO WARRANTY AGAINST INFRINGEMENT, NO WARRANTY OF MERCHANTABILITY, AND NO WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.

6.5.      This service and the databases are not fault-tolerant and are not designed for use in high-risk activities in any environment where use of the databases could lead to injury or death. HAMweather, LLC SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, OF FITNESS FOR HIGH-RISK ACTIVITIES.

6.6.      Force Majeure. You expressly agree that use of our service or databases is at your own risk. Neither we, our employees, affiliates, agents, third-party information providers, merchants, licensers or the like, warranty that our service will not be interrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of our service or databases or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our service or databases, unless otherwise expressly stated in this Agreement. 

6.7.      Under no circumstances, including but not limited to negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service or databases be liable for any direct, indirect, incidental, special or consequential damages that may result from the use of or inability to use our service or databases. We will further not be liable for results from but not limited to mistakes, omissions, interruptions, deletions of files, errors, defects, delays and/or operation, and/or transmission and/or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services.

6.8.      Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not:

(a) exceed the actual dollar amount which you paid during the billing month period during which the cause of action arose, or

(b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue.

7.        Term and Termination.

The following describes the effective date, duration and methods of termination: 

7.1.      Effective Date. The Effective Date of this Agreement is the date in which you first begin to receive services. 

7.2.      Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis. 

7.3.      Termination for Convenience. Subject to Section 3.3, you may terminate this Agreement at any time for your convenience by providing us with 30 days advance written notice. 

7.4.  Breach or Default. The following constitute a breach or default of this Agreement:
a) your failure to pay the current month's Service Fee by the date due,
b) your violation of Section 8.0,
c) your violation of 9.2, or
e) your violation of Sections 4.1, 4.2 or 4.3. 

8.       Activities Subject to Immediate Deactivation.

8.1.      We may immediately deactivate any subscription that is used for Illegal, Abusive or Unethical Activity without warning to you. Illegal, Abusive or Unethical Activities include copying, distributing of password or databases.

8.2.      Any violation of section 4.0

9.        Copyright.

The databases are copyright 2001 by HAMweather, LLC, all rights reserved. The customer gains the right to use the copyrighted databases for use with HAMweather, but does not gain ownership of the copyright or the databases.

10.    Miscellaneous.

10.1.   Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the state of Virginia, without regard to the conflicts of law provisions.  Both the customer and HAMweather, LLC  submit to the jurisdiction of the courts of the State of Virginia.  Both the customer and HAMweather, LLC agree to commence any litigation that may arise hereunder in the courts located in the Judicial District of Fulton County in the State of Georgia.

10.2.   Age. You certify that you are at least 18 years of age and able to legally enter into this agreement.

10.3.   Transfer. Either party may assign neither this agreement nor any interest herein in whole or in part, hereto without the prior written consent of the other party hereto. 

11.  Entirety, Merger, and Amendment.

This agreement constitutes the entire understanding of the parties with respect to the subject matter of this agreement and merges all prior communications, understanding, and agreements. 

12.     Binding Effect.

Subject to the limitations hereinbefore expressed, this agreement will mutually benefit and be binding upon the parties, their successors and assigns. 

13.     Severability.

If any provision of this agreement shall be held by a court of competent jurisdiction to be contrary to law or public policy the remaining provisions shall remain in full force and effect. 

14.     HAMweather, LLC reserves the right to cancel, modify, and/or change these Terms and Conditions of services contained in Terms and Conditions of service upon 30 days notice to Subscriber/Organization, transmitted via e-mail, advising of the change and the effective date thereof, but with changes in service fees being effective only at the end of any period for which the Subscriber / Organization has prepaid. Utilization of the service by the Subscriber / Organization following the effective date of such change shall constitute acceptance by the Subscriber / Organization of such change(s).

 A Copy of the current Terms of Service agreement will always be made available upon request. 

15.     Notices.

Except with respect to service of process, all notices may be sent by e-mail, fax, or express mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.