MOVINGWEATHER Terms and Conditions (Retail)
1. Definitions
In these terms and conditions the following terms shall have the meanings allocated to them:
"Activation" means the first time your software connects with your username and password to the Movingweather servers to activate the animation software provided to you.
"Agreement" means these terms and conditions, the Registration Details and the Technical Requirements;
"Charges" means the charges payable by you for the Service and the Software;
"Minimum Period" means a period of 6 or 12 months accordingly to your subscription, commencing from the Start Date;
"MOVINGWEATHER" ,"we" or "us" means Moving Weather Ltd of PO Box 704, Haywards Heath RH16 9EF, United Kingdom;
"Privacy Policy" means the privacy policy governing our use of the personal information that we collect from you in connection with the Service and set out on our website at http://www.Movingweather.com/en/privacy.php;
"Registration Details" means the personal information you provide on registration for the Service and which may be subsequently changed or amended by you or on behalf;
"Service" means the MOVINGWEATHER service that provides you with weather animation data using the MOVINGWEATHER Software provided to you.
"Software" means the MOVINGWEATHER client software which you download and install on your computer, or install on your computer from a provided CD, and which is required to use the MOVINGWEATHER Service;
"Software End User Licence Agreement" means the licence agreement you need to accept in order to use the Software;
"Start Date" means the date when the Service or any part of it is first made available to you or when you first start to use the Service, whichever is the earlier;
"you/your" means the person with whom MOVINGWEATHER is making the Agreement, as specified in the Registration Details.
2. The Service
2.1 Registering with the Service and using our Software gives you the ability to download and animate the weather subject to Clause 4, using a PC (of appropriate specification).
2.2 The Service will be provided or procured by MOVINGWEATHER with reasonable skill and care and in accordance with the provisions of this Agreement.
2.3 If you use the Service for business purposes you agree that you do so without any conditions, guarantees, warranties, whether expressed or implied including but not limited to any warranties or conditions as to satisfactory quality or fitness for a particular purpose, which are expressly excluded to the maximum extent permitted by law. You will not hold MOVINGWEATHER responsible for any loss of profit, business, opportunity, goodwill, reputation, revenue or savings you expect to make, wasted expenditure or data being lost or corrupted. Nor will you hold MOVINGWEATHER liable for damages, which may or may not have been foreseeable at the time you entered the contract.
3. Personal Information and Cookies
3.1 The Registration Details that you provide shall be true, accurate and complete. You agree to inform MOVINGWEATHER of any changes to your Registration Details immediately by e-mail addressed to MOVINGWEATHER, or updating My Account on the MOVINGWEATHER website. If you are not the same person as the person who pays the Charges, then you warrant that you have informed and have obtained from the bill payer the necessary consents and permissions for registering or changing account payment details and to allow MOVINGWEATHER to process such details.
3.2 MOVINGWEATHER will respect your personal information and undertakes to comply with all applicable UK Data Protection legislation. By signing up for the Services you consent to our using and/or disclosing your personal data as follows:
3.2.1 Disclosing certain personal details including account details to a bank, credit card operator or other payment processor for the purposes of setting up a continuous payment authority;
3.2.2 Providing or arranging for third parties to provide any part of the Services including but not limited to customer care facilities and billing, email and tools and services, which may involve disclosing information about you to third parties solely for this purpose;
3.2.3 Providing you with communications about our Services, special announcements including but not limited to instructions, information, changes to the products, services and prices, organisational and administrative changes; and Service newsletters that shall include but not be limited to Member benefits (which are unconditional rewards rewarding Members for their time with us), competitions and any other relevant information relating to the provision of our Services, inline with our Privacy Policy, available at http://www.Movingweather.com/privacy.php; and
3.2.4 Providing personal data to distributors of MOVINGWEATHER weather animation products with whom MOVINGWEATHER have a commercial relationship for the purpose of accounting and auditing.
3.3 Use of your Registration Data will be in accordance with our Privacy Policy. Our use will however be subject to any preferences you set on the registration form in which you have provided Registration Details.
3.4 Other than as required by law, or as permitted under this Agreement, MOVINGWEATHER shall not disclose your Registration Details to any third party without your permission in line with our Privacy Policy, available at www.movingweather.com/privacy.php;
3.5 In order to provide you with the Services, MOVINGWEATHER will attach cookies to your system that are essential to enable us to identify you as a Member to understand and facilitate your purchase of the Services. We also use cookies to ensure that our mailing tools are working correctly. You hereby consent to receiving the cookies by accepting these Terms of Use. Further details on how we use the information generated from the cookies is set out in our Privacy Policy.
4. MOVINGWEATHER's Obligations
4.1 In consideration of the Charges, MOVINGWEATHER shall provide the Service in accordance with the terms and conditions of this Agreement.
4.2 MOVINGWEATHER does not accept any responsibility for any defects or errors in either the Service or the Software.
4.3 You acknowledge that MOVINGWEATHER cannot warrant that the Service will be interruption free or that the transmission of information through the Service will be secure. The Service may be suspended for operational reasons (such as maintenance or Service upgrades) or because of an emergency. Before suspending or interrupting the Service (as aforesaid) MOVINGWEATHER shall use reasonable endeavours to give you as much notice as possible.
4.4 You acknowledge that it is technically impracticable to provide the Service free from errors and/or faults and MOVINGWEATHER does not undertake to do so. MOVINGWEATHER shall provide a Helpdesk Facility to enable faults to be reported and resolved but does not warrant that all faults will be corrected.
4.5 The obligations of MOVINGWEATHER to provide the Service shall be conditional upon the Technical Requirements being satisfied;
4.6 Except as may be expressly stated in this Agreement, all warranties and conditions, whether expressed or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
4.7 You acknowledge that due to contention on the Internet, the speed of the Service may be reduced or may not be available at times.
4.8 You acknowledge that MOVINGWEATHER cannot provide the Service to you unless you are connected to the Internet at the time you wish to use the Service, and that MOVINGWEATHER has no responsibility whatsoever to you in connection with the Service or provision of the same, if you are unable to connect to the Internet.
5. Your Obligations
5.1 You agree that as part of your wish to take part in the Service, some minor modifications may need to be made to your PC to make it operate with the Service. It is your responsibility to ensure that such modifications do not invalidate the terms of any warranty you may have concerning your PC. MOVINGWEATHER shall incur no liability for any claim that your warranty has been invalidated (if applicable) as a result of work carried out by you, MOVINGWEATHER or its agents in order to make your PC operate with the Service.
5.2 You will be allocated both a user name and a password in order to access the Service and you will be responsible for keeping your password confidential and agree to take all necessary steps to ensure that it is kept secure and is not disclosed to any unauthorised person. You will inform us upon becoming aware of any suspected or actual unauthorised use of the Service and will take all steps necessary (or requested by us) to prevent such use.
5.3 You agree that in order for you to have access to the Service, you must have internet connectivity. It is your full responsibility to ensure that you have such connectivity before attempting to use this service.
6. Use of the Service
6.1 You shall not use the Service: (a) in a way that does not comply with the terms of any legislation or any licence applicable to you or that is in any way unlawful or fraudulent or has any unlawful or fraudulent purpose or effect; (b) without prejudice to the generality of (a) above, in connection with the carrying out of a fraud or criminal offence against MOVINGWEATHER and/or its agents, or any public telecommunications operator; (c) to send, knowingly receive, upload, download, use or re-use any material which is abusive, indecent, defamatory, obscene or menacing, or in breach of any copyright, confidence, privacy or any other rights; (d) to send or procure the sending of any unsolicited advertising or promotional material; (e) in a way that does not comply with any instructions MOVINGWEATHER or its agents has given.
6.2 MOVINGWEATHER shall have the right to enforce such provisions set out in Clause 6.1 above by suspending or terminating the provision of the Service to you if MOVINGWEATHER knows you are in breach of such obligations.
6.3 You will indemnify MOVINGWEATHER and/or its agents against all costs, legal or otherwise, associated with any claims or legal proceedings brought or threatened against MOVINGWEATHER and/or its agents by a third party: (a) because the Service is used in breach of Clause 6.1 (a) to (f) inclusive; or (b) in circumstances where you are in breach of Clause 6.2.
6.4 You will notify MOVINGWEATHER of any such claims or proceedings referred to in Clause 6.3 and keep MOVINGWEATHER informed as to the progress of such claims and proceedings.
6.5 You will use the Software in accordance with the Software End User Licence Agreement.
7. Intellectual Property Rights
7.1 You will agree to enter into any agreement reasonably required by the owner of the copyright in any software made available to you for the purpose of accessing the Service.
7.2 You acknowledge and agree that all intellectual property rights in the Service (including, without limitation, any associated software) are vested and shall remain vested in MOVINGWEATHER, and other third parties and agents as appropriate.
8. Intellectual Property Rights Indemnities
8.1 MOVINGWEATHER will indemnify you against all claims and proceedings arising from the infringement of any intellectual property rights by reason of MOVINGWEATHER's provision of the Service to you. As a condition of this indemnity you must: (a) notify MOVINGWEATHER promptly in writing of any allegation of infringement; (b) make no admission relating to the infringement; (c) allow MOVINGWEATHER or its agents to conduct all negotiations and proceedings and give all their assistance in doing so (MOVINGWEATHER will pay reasonable expenses for such assistance); and (d) allow MOVINGWEATHER or its agents to modify the Service, or any item provided as part of the Service, so as to avoid the infringement provided that the modification does not materially affect the performance of the Service.
8.2 The indemnity in Clause 8.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment or software not supplied by MOVINGWEATHER or its agents, or to infringements caused by designs or specifications made by you, or on your behalf. You will indemnify MOVINGWEATHER and its agents against all claims, proceedings and expenses arising from such infringements or alleged infringements.
9. Charges
9.1 The payment you make covers the cost of setting up your MOVINGWEATHER account and will entitle you to receive animated weather information for a period of 365 days from registration.
9.2 MOVINGWEATHER will endeavour, where possible, to fix any errors and/or faults but reserves the right to charge for additional functionality when available.
10. Limitation of Liability
10.1 Neither party shall be liable to the other, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of or impairment of access to any data arising in relation to this Agreement including, without limitation, MOVINGWEATHER's ability to provide the Service.
10.2 The liability of MOVINGWEATHER in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to the price paid by you for the Charges in the year (commencing from the Start Date or any anniversary of the Start Date) in which the liability first arose.
10.3 MOVINGWEATHER or its partners warrants the physical media (i.e. CD-ROM) and the physical documentation, to be free of defects in materials and workmanship for a period of 90 days from the original purchase date. If notified within this warranty period and if such notification is determined to be correct, MOVINGWEATHER or its partners will, at its sole discretion, repair or replace the media or documentation affected. This limited liability is void if the damaged or defect has resulted from accident, abuse or misapplication.
10.4 Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
11. Term and Termination
11.1 You will not be entitled to a refund in full or in part for the remainder of the term of this Agreement.
11.2 Termination in accordance with this Clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party and all provisions which are expressed to survive this Agreement or impliedly do so shall remain in full force and effect.
11.3 In the event that MOVINGWEATHER suspends the Service to you pursuant to any breach by you of our payment terms, or in accordance with Clause 6.1 or with any other pertinent clauses pursuant to this Agreement, you will not be entitled to a refund.
11.4 Termination in accordance with this Clause 11 shall not prejudice or affect any right of action or remedy, which shall have accrued or shall thereafter accrue to either party and all provisions, which are expressed to survive this agreement or impliedly do so, shall remain in full force and effect.
12. Force Majeure
12.1 If either party is unable to perform any obligation under this Agreement because of a matter beyond that party's reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving that party's employees), or acts of local or central Government or other competent authorities or events beyond the reasonable control of that party's suppliers, the party will have no liability to the other for that failure to perform.
12.2 If any of the events detailed in Clause 12.1 continue for more than one month either party may serve notice on the other terminating this Agreement.
13. Variation
MOVINGWEATHER reserves the right to vary the terms of this Agreement or the nature of the Service (where the technical specification of the Service is varied) at any time. The latest version of our Terms and Conditions will be available on our website and should make sure that you check for any changes on a regular basis.
14. Miscellaneous
14.1 The Agreement shall be governed by and construed in accordance with English Law and the parties hereby agree to submit to the exclusive jurisdiction of the High Court of England in respect of any dispute or matter arising out of or in connection with the Agreement.
14.2 This Agreement constitutes the entire agreement between the parties and supersedes representations, communications and prior agreements (oral or written). This Clause shall not apply to any statement, representation, or warranty made fraudulently, or to any provision of this Agreement that was induced by fraud for which the remedies available shall be all those available under the law.
14.3 Any notice or other communication to be given under the Agreement must be in writing to the other party and may be delivered or sent by email, pre-paid first class letter post or fax transmission at the party to be served last known address. Any notice or document shall be deemed served if delivered, at the time of delivery; emailed, at the time of delivery to your email server; posted, 48 hours after posting; and if sent by facsimile transmission, at the time of transmission.
14.4 This Agreement shall not be assigned, sub-contracted, sub-licensed or otherwise disposed of by you. MOVINGWEATHER reserves the right to assign, sub-contract or otherwise transfer its obligations to provide the Service.
14.5 The illegality, invalidity or unenforceability of any provision this Agreement shall not affect the continuation in force of the remainder of this Agreement.
14.6 A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms. This clause does not affect any right or remedy of any person that exists or is available or otherwise than pursuant to that Act.
