Forensic Weather Consultants Affidavit Referenced in Motion for Summary Judgement Decision Dismissing CasePosted: Wednesday, 13 January 2021 at 10:28 am - Find out more...
FORENSIC WEATHER CONSULTANTS, LLC
TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF, AND THE INFORMATION GATHERED BY YOU THROUGH THE USE OF, CERTAIN ONLINE SERVICES (THE “SERVICES”) PROVIDED BY FORENSIC WEATHER CONSULTANTS, LLC (THE “COMPANY”) THROUGH ITS WEBSITES, INCLUDING THE FOLLOWING (COLLECTIVELY, THE “WEBSITES”):
BY CLICKING “I ACCEPT”, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND THAT YOU AGREE TO BE BOUND BY THE SAME. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE WEBSITES. UNAUTHORIZED USE OF THE WEBSITES MAY GIVE RISE TO LEGAL ACTION.
You may access and use the WEBSITES for the purpose of gathering meteorological data, reports and information, including, but not limited to, data concerning historical weather conditions, severe weather reports and data, storm reports, storm surges, wind speeds, wind gusts, and barometric pressures (collectively, the “Data”). You agree not to access or use the WEBSITES for any purpose that is prohibited by these Terms and Conditions or that is prohibited by any and all applicable federal, state and/or international laws, statutes, ordinances, rules, regulations and codes. The Company retains the right, in its sole and absolute discretion, to deny service or use of the WEBSITES to you, or to anyone, at any time and for any reason.
The WEBSITES and the Services are proprietary to the Company and, as owner of the WEBSITES and the Services, the Company reserves the exclusive right to modify and/or terminate the WEBSITES and the Services at any time. By using the WEBSITES and accepting these Terms and Conditions, the Company grants you a limited, personal, nontransferable, nonexclusive, revocable license to use the WEBSITES and the Services pursuant to these Terms and Conditions and to any additional policies that may be set forth by the Company from time to time.
The Company is not the creator of the incoming Data and has no control over services and/or data created or controlled by third parties. The Data you gather will be obtained by the Company “as is” from such third parties. Should you desire the Company’s services for litigation, trial testimony, depositions or other disputes, you understand and agree that these Terms and Conditions apply to and govern only the matters set forth herein and, in such event, the Company will, upon your request, prepare a more in-depth, full forensic report which will include additional analysis, details and methodology that are not included in the Data. These additional services not governed by these Terms and Conditions will require official retention of the Company by you and additional fees as set forth in the Company’s retainer agreement that, upon request, can be provided.
By using the WEBSITES, you acknowledge and agree that the Company is not responsible or liable for any damage or loss as a result of your reliance on the Data or any content or services provided by third parties. The Company and the WEBSITES shall be excused from performance to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from weather conditions or other elements of nature or acts of God, error or disruption to major computer hardware or networks or software failures, Internet unavailability, or other force majeure causes beyond the reasonable control of the Company.
The WEBSITES contain copyrighted material and other proprietary information including, but not limited to, text, software, photos, video, graphics, music and sound and the entire contents of the WEBSITES are protected by copyright, trademark, and other intellectual property laws of the United States. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works or in any way exploit any part of the WEBSITES or the Services, in whole or in part. If downloading, copying, redistributing, retransmitting or publishing the Data or any other copyrighted material permitted under applicable law, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend or copyright notice. The Company does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting therefrom, and for your use of the Data after you gather the same. You acknowledge that the Data you collect for a particular address at a particular time on a particular date is unique and that such Data is inapplicable to any other address, time or date.
All payments to the Company for use of the Services offered through the WEBSITES are processed using an automated payment system. You will be charged for your use of the Services on a per-search basis. Payment to the Company will not be accepted via any means other than the foregoing, unless otherwise earlier consented to by the Company. By entering your credit card or other online payment information, you affirmatively agree that you are an authorized user of such credit card or online payment account and that the information you enter is true and accurate. You expressly authorize the Company to charge the amount requested to your credit card and/or debit such amount from your online payment account. If for any reason a charge or payment is declined or reversed, you agree to immediately pay the Company a reasonable service charge and to reimburse the Company for all reasonable costs of collection.
THE COMPANY, AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES AND AGENTS, EXPRESSLY DISCLAIM, AND YOU HEREBY EXPRESSLY WAIVE, ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES RELATING TO BUSINESS PROFITS OR LOSSES, INTERNET SERVICE RELIABILITY, OR THE ACCURACY, INTEGRITY, RELIABILITY OR COMPLETENESS OF ANY OF THE DATA OR CONTENT PUBLISHED OR MADE ACCESSIBLE ON THE WEBSITES OR THROUGH THE SERVICES OR ANY SEARCHES PERFORMED BY YOU ON THE WEBSITES SEEKING DATA. THE COMPANY DOES NOT WARRANT THAT THE WEBSITES OR FUNCTIONS CONTAINED IN THE WEBSITES WILL OPERATE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITES IS FREE OF VIRUSES OR OTHER HARMFUL ITEMS EITHER IN OR OUT OF THE CONTROL OF THE COMPANY. IF YOUR USE OF THE WEBSITES RESULTS IN THE NEED FOR SERVICING OR REPLACEMENT OF ANY EQUIPMENT USED BY YOU, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE SAME OR ANY COSTS ASSOCIATED THERETO. IN NO EVENT SHALL THE COMPANY, OR ANY OF ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU, AND YOU HEREBY RELEASE ALL OF THE AFOREMENTIONED FOR, ANY AND ALL LOST PROFITS OR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITES, THE SERVICES OR THE DATA, OR ANY BREACH OF THESE TERMS AND CONDITIONS.
To the fullest extent permitted by law, you shall indemnify, defend and hold harmless the Company, and its members, managers, officers, employees and agents, from and against all claims, damages, loss, liability or expense of any kind, which is in any way connected with the Services, the WEBSITES and the Data, to the extent such arises or results from any negligent act, omission, breach of any duty or obligation, on the part of you or the breach by you of any covenant, representation or warranty contained in these Terms and Conditions. This indemnification includes, but is not limited to, any claims, damages, loss, liability or expense of any kind, including attorneys’ fees, which is in any way connected with the Services and the WEBSITES, and/or which is based upon a breach of any duty or obligation on your part, or any of your agents’ part, even if no negligent act is found to have occurred.
These Terms and Conditions may be changed from time to time in the Company’s sole discretion and constitute the entire agreement and understanding between you and the Company with respect to the subject matter hereof. These Terms and Conditions supersede all prior or contemporaneous communications and proposals, whether oral or written, between you and the Company with respect to such subject matter. You irrevocably consent that any action or proceeding relating hereto shall be brought in any state or federal court of general jurisdiction in Albany, New York. If any provision of these Terms and Conditions become or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, the same shall continue in full force and effect without such provision. The validity, interpretation, construction and performance of these Terms and Conditions shall be governed by the laws of the State of New York without giving effect to choice of law or conflict of laws rules and principles. If you or the Company commence an action for relief against the other, legal, equitable, declaratory or otherwise, arising out of or in connection hereto, including, without limitation, any action for the recovery of monies, the non-prevailing party shall pay the prevailing party its reasonable costs, fees and expenses incurred in connection with and in preparation for said action including, without limitation, court costs, reasonable attorneys’ fees, accountants and other experts, disbursements and interest. You agree that, in the event of a breach or alleged breach of these Terms and Conditions, the Company may not have an adequate remedy at law, including monetary damages, and that the Company may, in addition to other available rights and remedies, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violation of, any of the provisions hereof, and may do so without posting a bond or other security. Failure by the Company to enforce any of the provisions hereof shall not constitute a waiver or limit any of the Company’s rights hereunder.
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