END USER LICENSE AGREEMENT
READ CAREFULLY THIS END USER LICENSE AGREEMENT BEFORE accessing, receiving, downloading, syncing, using, or possessing OR continuing to access, receive, download, sync, use or possess Software, Documentation or Data. The Grant of License contains LIMITATIONS and RESTRICTIONS on your right to access and/or use the Software, Data, and associated Documentation by or on behalf of AccuWeather and its Third Party providers (each as defined below). You will not be entitled to any refund of pre-paid Subscription fees for early Termination of this Agreement. If you do not agree to these terms, please do not click "Accept" or "Continue" or access the software or register for Products or services with AccuWeather. IT IS RECOMMENDED THAT YOU DOWNLOAD AND KEEP A COPY OF THIS LICENSE FOR YOUR RECORDS. This document can be viewed in its entirety here.
The Products and/or services you have accessed and/or requested include software, user interfaces, applications and associated media ("Software") for use with desktop computers, via the internet, and/or via wireless or other handheld or mobile devices ("Hardware"), printed, online and electronic materials associated therewith ("Documentation") and data, materials, and content ("Data") provided by or on behalf of AccuWeather, Inc. ("AccuWeather") or third party providers that either contribute to the creation or operation of the Software, Data and Documentation, or enable access or use of same by Licensee, including but not limited to software and/or technology developers, internet storefronts, Internet Service Providers, third party vendors and/or clients or customers of AccuWeather, and mobile/wireless communications carriers (collectively "Providers"). By accessing, receiving, downloading, syncing, using or possessing or continuing to access, receive, download, sync, use or possess the Software, Documentation, and/or any Data, you ("Licensee") acknowledge the validity of and agree to be and are hereby bound by the terms and conditions of this End User License Agreement ("EULA"), any supplemental terms and conditions posted on http://www.accuweather.com governing use of Software, Hardware, Documentation and Data or otherwise agreed to in writing with AccuWeather, any applicable subscription terms and conditions relating to the Software, Data and Documentation ("Subscription Terms"), as well as any applicable Provider terms and conditions ("Provider Terms"). If Licensee does not agree to the terms and conditions of this EULA, or the applicable Terms and Conditions, Subscription Terms, or Provider Terms, Licensee should not access, receive, download, sync, use or possess the Software, Data and/or Documentation and must immediately destroy any and all copies of the Software, Data and/or Documentation accessed by Licensee. To the extent this EULA may be translated into a language other than English and there is a conflict of terms between English and other language, the English version shall control.
- GRANT OF LICENSE. By clicking yes to accept these terms, acknowledging these terms upon initial access of the Software, or upon registering for Products and services associated with the Software, Data, Documentation or Hardware with AccuWeather or its Providers, AccuWeather grants to Licensee a personal, non-exclusive license to use one copy of the Software, Data and Documentation, only as authorized in this EULA, on one Hardware device at any given time, owned, leased, licensed or otherwise controlled by Licensee, and Licensee hereby acknowledges and agrees to the validity of this EULA, the Terms and Conditions, the Subscription Terms, and Provider Terms, as applicable, and agrees to be bound hereto. The Software, Data and Documentation will be in the form and format as determined by AccuWeather in its sole discretion from time to time, and such form and format may limit or restrict the use of the Software, Data or Documentation to certain types of Hardware devices at the exclusion of others, and may have additional licensing terms restricting their use thereto. The Software, Data and Documentation is "in use" on Hardware when it is loaded into temporary memory or installed into permanent memory of that Hardware. AccuWeather expressly reserves the right to terminate this license grant without notice to Licensee.
- LIMITATIONS. Licensee may only install, store, and use the Software, Data and/or Documentation on one Hardware device for personal, non-commercial purposes only. You may not use the Software, Data or Documentation on any other platform, including, but not limited to servers, except as expressly provided herein. The sale and/or redistribution of the Software, Data and/or Documentation is expressly prohibited, unless agreed to in writing by AccuWeather. Use other than described above may subject the Licensee to termination of this license and denial of access to AccuWeather Products and services. Licensee may not remove any proprietary notices that appear in connection with the Software, Data or Documentation, and may not modify the Software, Data or Documentation in any way. Any copies made of the Software, Data and/or Documentation must be restricted to back-up, archival purposes, provided such copy contains all of the original proprietary notices provided with or otherwise relating to such Software, Data and Documentation.
- RESTRICTIONS. The Software, Data and/or Documentation is licensed to the Licensee, not sold, and only to Licensee and not any third party. Licensee may not use, or permit other individuals or entities to use, the Software, Data and Documentation except under the terms expressly listed herein. Licensee may receive the Software, Data and/or Documentation in more than one medium. Regardless of the type or size of medium You receive, the Software may be in use on only one medium that is appropriate for Your single Hardware device at any given time. This EULA and the Software, Data and/or Documentation may not be shared with other users or used concurrently on different Hardware devices. Without limiting the foregoing, but by way of explanation, some Software is compatible with mobile devices that have limited memory for large file or application storage purposes. With respect to Software intended for use with a mobile or handheld Hardware device with limited memory for storage (i.e. Blackberry®, cell phone, Palm®, etc.), You may install and/or access the Software, Data and/or Documentation on one Hardware device (i.e. mobile handheld device), and backup the Software, Data and/or Documentation on a second Hardware device (i.e. desktop computer), so long as the Software, Data and Documentation is in use on only one Hardware device at any given time by You and You alone, and the second Hardware device is for storage or back-up purposes only. Licensee shall not personally, nor permit any other individual or entity to: (a) use the Software, Data and Documentation for service bureau, time-sharing, enterprise, concurrent use or other similar purposes; (b) use the Software, Data and Documentation following expiration or termination of any applicable subscription period; (c) modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software and Data to human-readable form nor create derivative works based upon the Software, Data or Documentation or any part thereof; (d) copy the Software, Data and Documentation (except as permitted herein); (e) rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to or copies of the Software, Data and Documentation; (f) make, distribute, transfer or push copies of the Software, Data or Documentation from one Hardware Device or medium to another over a network without a specific license from AccuWeather; (g) export or re-export, directly or indirectly, the Software, Data and/or Documentation into any country prohibited by the United States Export Administration Regulations; and (h)remove any proprietary notices or labels on or relating to the Software, Data and Documentation. Licensee acknowledges that AccuWeather has the right to remove listings, restrict access, terminate and otherwise modify the Products and services provided by AccuWeather for any reason, including but not limited to a breach of any of the terms of this EULA or any applicable Terms and Conditions, Subscription Terms , or Provider Terms. Licensee may not transfer this EULA without AccuWeather's prior consent. If such consent is granted by AccuWeather, Licensee must transfer all Software, Data and Documentation to such end user, and may not retain any copies. The recipient of such transfer must agree to all terms and conditions of this EULA. Any purported sublicense, assignment, transfer or encumbrance shall be void.
- Enhancements and Updates. This license does not grant Licensee any right to any enhancement or update of the Software and Data and any other licensed material contemplated by this Agreement, although such items may be made available to Licensee from time to time at AccuWeather's sole discretion.
- Access. The Software, Data and Documentation supplied by AccuWeather is made available on an electronic site in State College, Pennsylvania or other sites AccuWeather shall designate ("Designated Site"). Your options as to which Software, Data and/or Documentation are available to You, and how to move the Software, Data and/or Documentation from the Designated Site to Your location and/or to issue appropriate electronic commands to accept the Software, Data or Documentation at the Designated Site and move such items to an authorized location or to pass on authorized users to the Designated Site are limited by the type or format of the Software, Data or Documentation selected by You, and Your Hardware Device(s). AccuWeather makes no guarantees that the Software, Data and/or Documentation selected by You will be operable with Your Hardware Device(s). For the purposes of determining situs with regard to taxation, jurisdiction or other issues, it is agreed that the situs of the Software, Data and Documentation receipt and transfer is in Pennsylvania. A trademark or copyright, or copyrightable work contained within the items downloaded or accessed is considered a use or publication of the trademark or copyright in both the location in which it has been accessed in Pennsylvania at the host site and at the location of the user.
- Protection of Intellectual Property Rights. AccuWeather Inc. retains all rights, title and interest, including rights of trademark and copyright in those things defined herein as "Property of AccuWeather." "Property of AccuWeather" is hereby defined to include all rights, title and interest in the Software, Data and Documentation (subject to any underlying Provider rights therein), plus any reports, forecasts, graphics, data, demographic and user information, equipment and information furnished pursuant hereto, the trademark "AccuWeather", identifiers embodying "ACCU" as all or a portion thereof, any other trade names, trademarks, service names, symbols, identifiers, URL's, formats, designs, devices; or proprietary Products owned by AccuWeather or as may be used to designate the Products and services furnished by AccuWeather or used in connection with the Products and services by AccuWeather or its Providers. The intellectual property rights of all Providers contributing to this website and the Software, Data and/or Documentation hereto shall remain with the respective Providers, including, without limitation, certain applications, software, features, enhancements and modifications made thereto by the Providers on behalf of AccuWeather. Access codes and information furnished by AccuWeather or its Providers to You are intended for Licensee's sole and exclusive use only and shall be considered Property of AccuWeather and/or its Providers. When the Property of AccuWeather or its Providers is displayed or used in publications of any kind or through any media, all proprietary notices and/or additional licenses or terms included with the Property of AccuWeather or its Providers shall not be removed or defaced by Licensee. This EULA gives Licensee no rights to the Software, Data or Documentation other than as expressly provided herein, and Licensee shall not claim any rights including without limitation, trademark or copyrights in any Software, Data or Documentation. All rights not specifically expressly granted herein, including Federal and International Copyrights and Industrial Property rights, are reserved for the sole benefit of AccuWeather or its Providers.
- DISCLAIMERS. THE SOFTWARE, DATA AND DOCUMENTATION ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OR TECHNICAL SUPPORT OF ANY KIND FROM ACCUWEATHER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACCUWEATHER AND ITS AFFILIATES expressly disclaim any and all representations and warranties, express or implied, arising by law or otherwise, regarding the Software, Data, Documentation, or any other Products and services contemplated by this EULA, including without limitation any express or implied warranty of merchantability, express or implied warranty of fitness for a particular purpose, non-infringement, quality, accuracy, completeness, effectiveness, reliability, usefulness, that the Software, Data and/or Documentation will be error-free, or implied warranties arising from course of dealing or course of performance.
TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE OF INITIAL DOWNLOAD OR INSTALLATION OF THE SOFTWARE, DATA AND/OR DOCUMENTATION OR ACCESS, DOWNLOAD, USE OR POSSESS SERVICES PROVIDED BY ACCUWEATHER FOR OR ON BEHALF OF LICENSEE. This limited warranty is offered by AccuWeather alone, and does not extend to any software code, data, information, content and the like that may be contributed to this website, the Software, Data or Documentation by Providers or unrelated third parties. THE ENTIRE RISK ARISING OUT OF THE ACCESS, RECEPTION, DOWLOAD, SYNC, USE OR POSSESION OF THE SOFTWARE, DATA AND DOCUMENTATION REMAINS WITH LICENSEE.
Without limiting the foregoing, it is further understood that AccuWeather and its Providers are not responsible for Your use or misuse of the Software, Data and/or Documentation or the results from such use. AccuWeather and its Providers make 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 LICENSEE 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES THAT THE SOFTWARE, DATA AND/OR DOCUMENTATION MAY INCLUDE INACCURACIES AND LICENSEE WILL USE COMMON SENSE AND FOLLOW STANDARD SAFETY PRECAUTIONS IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE, DATA OR DOCUMENTATION. LICENSEE IS ADVISED AND INFORMED THAT THE GOVERNMENT ISSUES OFFICIAL WATCHES, WARNINGS, ADVISORIES, BULLETINS AND OTHER COMMUNICATIONS. CUSTOMER SHOULD KEEP ADVISED OF SAME. LICENSEE AND THIRD PARTIES ARE SOLELY RESPONSIBLE FOR ACTION OR LACK OF ACTION TAKEN TO PRESERVE LIFE OR PROPERTY.
- LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACCUWEATHER OR ITS PROVIDORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, INJURY, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, AND/OR LOSS OF PROFITS ARISING OUT OF, OR RELATED TO, IN ANY MANNER, THIS EULA, OR THE DELIVERY, PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS, OR USE OF THE SOFTWARE, DATA OR DOCUMENTATION HEREUNDER REGARDLESS OF THE FORESEEABILITY THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OR EXCLUSION OF LIABLITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APLLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE.
- LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF ACCUWEATHER AND ITS PROVIDERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ITS IMPLEMENTATION SHALL NOT EXCEED THE GREATER OF $1.00 OR 50% OF THE FEES PAID BY LICENSEE TO ACCUWEATHER UNDER THIS AGREEMENT, AND ANY APPLICABLE Terms and Conditions, Subscription Terms, OR PROVIDER TERMS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. The limited warranty, exclusive remedies, and limited liability set in this EULA are fundamental elements of the basis of the EULA, Terms and Conditions, Subscription Terms, and Provider Terms. Licensee agrees AccuWeather would not be able to provide the Software, Data and/or Documentation to Licensee on an economic basis without such limitations.
- High Risk Activities. The Software, Data and Documentation is not fault tolerant and is not designed, manufactured or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software, Data or Documentation could lead directly to death, personal injury or severe physical or environmental damage ("High Risk Activities"). Accordingly, AccuWeather and its Providers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
- Events Beyond AccuWeather Inc.'s Control. AccuWeather shall not be held responsible for any failure or malfunction in power or communications nor the failure or refusal of third party transmission intermediaries to perform, continue or renew their contractual arrangements with AccuWeather, nor inability to perform occasioned by such or by labor strife, war, riot, terrorism, natural disasters, severe weather or other events beyond the control of AccuWeather. The unavailability of Software, Data or Documentation from AccuWeather's Providers shall not be considered a disruption of services and shall not affect the obligations of Licensee hereunder.
- Governing Law & Jurisdiction. The parties agree to submit to the Pennsylvania Courts only, for any dispute arising out of this Agreement or related thereto, and consent to the jurisdiction of said Courts and further agree that any and all matters of dispute shall be adjudicated, governed and controlled under and by Pennsylvania law and this paragraph shall supersede any conflicting choice of law rules. The parties expressly stipulate that the 1980 Convention on Contracts for the International Sale of Goods shall not apply, nor shall the Uniform Computer Information Transactions Act.
- Severability. In the event any term of this Agreement is found by any Court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution as long as a party's rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement a provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
- Indemnity. Licensee hereby indemnifies and agrees to hold AccuWeather and its parents, subsidiaries, affiliates, and Providers (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) harmless from and against any and all claims, demands and actions, and any liabilities, damages or expense resulting therefrom including court costs and reasonable attorney's fees, arising out of or in connection with any breach of this EULA or any act or omission on the Licensee's part relating to the use or possession by Licensee of Software, Data or Documentation.
- Export Restrictions. Licensee acknowledges that the Software, Data, Documentation and other underlying information or technology licensed hereunder is subject to the export control laws and regulations of the U.S.A., and any amendment thereof. Licensee acknowledges that no Software, Data, Documentation or other underlying information or technology licensed hereunder may be accessed, downloaded, used, possessed or otherwise exported or re-exported to (or to a national or resident of) any country outside of the United States (including further export if you took delivery of the Software, Data or Documentation outside the United States) without first complying strictly and fully with all export controls that may be imposed by the United States Government or any country or organization of nations within whose jurisdiction you use the Software, Data, Documentation or other underlying information or technology. If Licensee has any questions regarding its obligations under the United States of America Export regulations, Licensee should contact the Bureau of Export Administration, United States Department of Commerce, Exporter Counseling Division, Washington, D.C., http://www.bxa.doc.gov/.
- US Government Restricted Rights. The Software, Data, and Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in this EULA, the Terms and Conditions, the Subscription Terms, the Provider Terms, and as otherwise set forth in DFARS 227.7202-1(a) and 227.7202-3(a), DFARS 252.227-7013, FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19, or successor provisions, as applicable. Contractor/Manufacturer is AccuWeather, Inc., 385 Science Park Road, State College, PA 16803, or others, as indicated on this site. These restrictions change from time to time.
- Waiver. Any waiver hereunder must be made in writing, and failure at any time to require the other party's performance of any obligation under this Agreement will not affect the right subsequently to require performance of the obligation.
- Assignment. Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned or delegated by Licensee, to any other person or entity without the prior express written consent of AccuWeather.
- Term and Termination. This EULA is effective upon your acceptance of these terms and conditions, and shall continue until terminated. This Agreement shall terminate automatically if Licensee fails to comply with this EULA and/or any applicable Terms and Conditions, Subscription Terms, or Provider Terms, or if payment is delayed or denied processing due to insufficient funds to cover the subscription fees when due, if any. No notice shall be required from AccuWeather to effectuate such termination. On termination, Licensee must promptly destroy any and all copies of the Software, Data and/or Documentation, and Licensee may terminate this EULA by destroying, removing or obliterating the Software, Data or Documentation and all copies thereof, and certifying as such to AccuWeather. In the event of any termination by AccuWeather pursuant to this EULA, Licensee shall not be entitled to any refund of pre-paid subscription fees.
- Entire Agreement. This Agreement represents the entire agreement of the parties hereto related to the subject matter hereof and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this EULA are of no force and effect. AccuWeather may modify this EULA at any time by posting a new EULA on this site, with or without notice to You. You are advised to check this site frequently for updates to this EULA, and any applicable Terms and Conditions, Subscription Terms, or Provider Terms. Questions regarding these terms may be submitted in writing to AccuWeather, Inc., 385 Science Park Road, State College, PA 16803, attn.: Contracts Administrator.
Version date: August 1, 2005
Prior versions of this document can be found here.