WeatherFlow-Tempest, Inc. Software License Agreement 

The following Commercial Terms of Use apply to all business or organizational use of WeatherFlow Tempest software, hardware and associated services.  Please refer to our Non-commercial Terms of Use for any personal use of WeatherFlow Tempest software, hardware and associated services, which exclude use by groups, organizations, non-profits, clubs, government agencies, municipalities, businesses, or other commercial entities.

Commercial License  

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY  BEFORE USING ANY PHYSICAL OR DATA AND SOFTWARE PRODUCTS MADE  AVAILABLE TO COMMERCIAL USER BY WEATHERFLOW-TEMPEST, INC.,  REGARDLESS IF SUCH PRODUCTS ARE WEATHERFLOW-BRANDED, TEMPEST 

BRANDED, OR OTHERWISE BRANDED. BY USING YOUR WEATHERFLOW  PRODUCTS, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF  THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT  USE THE PRODUCTS AND PROMPTLY CONTACT WEATHERFLOW-TEMPEST, INC.  FOR A REFUND PURSUANT TO OUR REFUND TERMS.  

This Software License Agreement (“Agreement”) between commercial user with an annual gross  revenue of less than $10 million (“Commercial User”, “You”, or “Your”) and WeatherFlow Tempest, Inc. (“WeatherFlow”) and governs Commercial User’s use of any WeatherFlow website,  mobile application, application, API feed and/or access, software, source code, firmware, site,  embedded software, content, analyses, graphs, maps, charts, third party software, data,  documentation, product, developer toolkit, or service linking to or containing this Agreement,  including Tempest, TempestWx, DataScope, StormTrack, StormPrint, WindX, WindAlert,  iWindsurf, iKitesurf, SailFlow, and FishWeather (collectively “Data and Software Products”).  Data and Software Products shall include any data or products created, originating, or resulting  from another Software Product, along with updates or replacements to any Software Product, and  it shall not be necessary for a Software Product to coordinate with, communicate with, or otherwise relate to physical hardware products to be considered a Software Product. 

GENERAL

The Data and Software Products made available to Commercial User by  WeatherFlow are licensed, not sold, to Commercial User by Weatherflow, for use only under the terms of this License. WeatherFlow and its licensors retain all ownership and  intellectual property rights of, in, and to the Data and Software Products.  

PERMITTED USE AND RESTRICTIONS

WeatherFlow grants to Commercial User a limited, non exclusive commercial license to the Data and Software Products, subject to the following  restrictions: 

• 1. Commercial User shall be assigned user accounts, passwords, access token(s), and  other access information (“Account Credentials”) and Commercial User shall not  share, transfer, or assign the Account Credentials without express written  permission from WeatherFlow, and any attempted transfer or assignment is void; 
  2. Commercial User shall promptly pay all fees, taxes, and payments due for  continued use of and access to the Data and Software Products, subject to any trial  or credits granted to Commercial User by WeatherFlow; 
  3. Commercial User may use the Data and Software Products for commercial or  business purposes on a non-exclusive basis, provided that Commercial User shall not in any way compete with WeatherFlow or WeatherFlow’s business operations,  and provided that Commercial User shall not make the Data and Software Products publicly accessible. (If you desire to use the Data and Software Products on an  exclusive basis, please contact WeatherFlow at support@weatherflow.com to  arrange a separate exclusive license from Weatherflow regarding your desired  exclusive use);
  4. Commercial User shall not use Data and Software Products in a way that the Data  and Software Products are a substantial component of a good, product, or service  offered and/or sold by Commercial User in the amount of more than $50,000 in  annual revenue;
  5. Commercial User consents to receiving certain communications from  Weatherflow, including necessary service announcements, administrative  messages, newsletters, or other marketing communications;
  6. Commercial User shall not use the Data and Software Products in any way that is  contrary to applicable local, state, national, regional, or international law  (availability of some of the Data and Software Products, or features thereof, may  vary by language or region), including use that is defamatory or otherwise  objectionable;
  7. Commercial User shall not use the Data and Software Products in any way that  violates or infringes the rights of WeatherFlow or any third party (including any of  WeatherFlow’s third party service providers, vendors, clients, or customers),  including use that is harassing, abusive, misleading, harmful or otherwise  objectionable;
  8. Commercial User shall not use the Data and Software Products in any way that  could damage, disable, overburden, impair or harm any server network, computer  system, resource, device, equipment, or service provide of Weatherflow;
  9. Commercial User shall not use the Data and Software Products for the purposes of  gambling or betting; 
  10. Commercial User shall not use the Data and Software Products either directly or  indirectly for the purpose of triggering a payout effect within any form of risk  transfer, including, without limitation, insurance, reinsurance, financial  transactions, or capital markets transactions;
  11. Commercial User shall be responsible for obtaining and paying for all cellular, wifi,  or other internet access necessary or desirable to download or use the Data and  Software Products or features thereof, including any text or data charges;
  12. Commercial User shall not misappropriate WeatherFlow’s proprietary processes,  information, or trade secrets;
  13. Commercial User shall consult with WeatherFlow prior to using any of the  trademarks, service marks, designs, and logos (“Marks”) displayed in the Data and  Software Products, including for the purpose of advertising, promotion or to imply  an endorsement by or relationship with WeatherFlow or its licensors, so that  Commercial User and WeatherFlow properly respect each other’s branding  guidelines;
  14. Commercial User shall not remove, obscure, or alter any proprietary notices  (including trademark and copyright notices) that may be affixed to or contained  within the Data and Software Products;
  15. Commercial User shall not provide unauthorized access to the Data and Software  Products; and
  16. Commercial User’s use of the Data and Software Products shall be subject to  WeatherFlow’s Privacy Policy.  

BREACH

Use of the Data and Software Products outside the scope of this Agreement or in  a way inconsistent with this Agreement, or Commercial User’s violation of one or more of  the restrictions or conditions of this Agreement, shall be viewed as copyright infringement  and/or a breach of this Agreement. Commercial User agrees that WeatherFlow will be  irreparably harmed by use outside the scope of or inconsistent with this Agreement and  further agrees that WeatherFlow shall be entitled to injunctive relief as a result of such  improper use. WeatherFlow reserves the right to immediately terminate the Account  Credentials and/or access to the Data and Software Products, without notice, for any reason  or no reason. Commercial User agrees that WeatherFlow will not be liable for any damages  arising from any interruption, suspension or termination of your Account Credentials or  access or use of the Data and Software Products. Your failure to comply with this License  may also expose you to civil and/or criminal liability.  

YOUR CONTENT

To the extent that you own any content and transmit such content to  WeatherFlow, via a WeatherFlow product or otherwise, you grant WeatherFlow a  worldwide, non-exclusive, irrevocable, perpetual, fully paid up, transferable, sublicensable right and license to use, reproduce, distribute, sell, create derivative works of, modify,  translate, publish, sublicense, and otherwise exploit for any purpose whatsoever, your  owned and transmitted content, without notice, attribution, or compensation to you. If you  post content owned by you in such a way that it is publicly accessible, you are solely  responsible for such posting, and you grant other users of the Data and Software Products the license to access, view, store, and reproduce your content for such other user’s personal,  non-commercial use, and you waive any rights to attribution, integrity, and any other legal  or moral rights in connection with such user’s use of your content. Please refer to our  Privacy Policy for more information on how we collect, use, and share the information,  and content we receive from you. 

APPLE

If you use an Apple device to access, use, or download certain Data and Software  Products from the Apple App Store (“Apple Device Services”), then you agree and  acknowledge that: 

1. Apple, Inc. is not a party to and bears no duties or obligations to you, including, but  not limited to, any obligation to furnish you with Apple Device Services  maintenance and support; 
2. In the event of any failure of the Apple Device Services to conform to any  applicable warranty, you may notify Apple, and Apple will refund to you the  purchase price you paid to Apple for such Apple Device Services. To the maximum  extent permitted by applicable law, Apple will have no other warranty obligation  whatsoever with respect to the Apple Device Services; 
3. You will have no claims, and you waive any and all rights and causes of action  against Apple with respect to the Apple Device Services or this Agreement,  including, but not limited to claims related to maintenance and support, intellectual  property infringement, product liability, consumer protection, privacy, or  regulatory or legal conformance; and 
4. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement.  Upon your acceptance of this Agreement, Apple will have the right (and will be  deemed to have accepted the right) to enforce this License against you as a third party beneficiary thereof. 

BINDING ARBITRATION

Any controversy or claim arising out of or relating to this Agreement  shall be settled by binding arbitration in accordance with the commercial arbitration rules  of the American Arbitration Association. Should you desire to file any claim against  WeatherFlow arising out of or related to the Data and Software Products, you must do so  within one (1) year of the day you become aware of the claim. Failure to file a claim within  the aforementioned timeframe will permanently bar the claim and constitute your complete  and final waiver of any claim in connection therewith. Any such controversy or claim will  be arbitrated on an individual basis and will not be consolidated in any arbitration with any  claim or controversy of any other party. The decision of the arbitrator will be final and  unappealable. The arbitration will be conducted in Santa Cruz County, California, and  judgment on the arbitration award may be entered into any court having jurisdiction  thereof. Notwithstanding anything to the contrary, WeatherFlow may at any time seek  injunctions or other forms of equitable relief from any court of competent jurisdiction. 

INTERNATIONAL

1. The Data and Software Products and other technology licensed hereunder may be  subject to the export control laws and regulations of the United States. You  acknowledge that your access to, downloading, use, possession, export or re-export  of the Data and Software Products to (or to a national or resident of) any country  outside of the United States may be subject to export controls and other applicable  laws that may be imposed by the United States Government or any country or  organization of nations within whose jurisdiction you use the Data and Software  Products. Determination of the applicable law and compliance therewith is your  sole obligation and responsibility. You represent and warrant that: (i) you are not  located in a country that is subject to a United States Government embargo, or that  has been designated by the United States Government as a “terrorist supporting” country; and (ii) you are not listed on any United States Government list of  prohibited or restricted parties. 
2. WeatherFlow operates the Data and Software Products in the United States, which  means that if you choose to access our Data and Software Products from a location  outside the United States, you acknowledge and consent to the collection,  transmission, use, storage, and processing of your personal information in countries  outside of your country of residence. Unless we enter into a separate, mutually  signed, written agreement with you on different terms, we do not represent that the  Data and Software Products are available for use in jurisdictions outside of the  United States. You agree you are solely responsible for complying with all local  laws, regulations, and rules in the jurisdiction in which you reside or access the  Data and Software Products to the extent such laws are applicable. 

LIMITATION OF LIABILITY

WEATHERFLOW, INCLUDING ITS OFFICERS, DIRECTORS,  SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS WILL NOT  BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL  DAMAGE, OR ANY OTHER DAMAGE, AND LOSS (INCLUDING LOSS OF PROFIT  AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT,  CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR  IN CONNECTION WITH THE USE OF, UPDATES TO, OR THE INABILITY TO USE  THE DATA AND SOFTWARE PRODUCTS, OR FROM ANY FAILURE, ERROR, OR  BREAKDOWN IN THE FUNCTION OF THE DATA AND SOFTWARE PRODUCTS,  OR FROM ANY FAULT OR ERROR MADE BY WEATHERFLOW OR ANYONE  ACTING ON ITS BEHALF, INCLUDING THIRD PARTY SERVICE PROVIDERS, OR  FROM YOUR RELIANCE ON THE CONTENT OF THE DATA AND SOFTWARE  PRODUCTS, INCLUDING, WITHOUT LIMITATION, CONTENT ORIGINATING  FROM THIRD PARTIES, OR FROM ANY COMMUNICATION WITH THE DATA  AND SOFTWARE PRODUCTS, OR WITH OTHER USERS ON OR THROUGH THE  DATA AND SOFTWARE PRODUCTS, OR FROM ANY DENIAL OR  CANCELLATION OF YOUR USER ACCOUNT, OR FROM RETENTION,  DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT  ON THE DATA AND SOFTWARE PRODUCTS. IN ANY EVENT, YOUR SOLE  REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS OR  MALFUNCTIONS, AND IN LIGHT OF THE RELEVANT CIRCUMSTANCES. IN NO  EVENT WILL WEATHERFLOW’S ENTIRE LIABILITY TO YOU IN RESPECT OF  ANY OF THE DATA AND SOFTWARE PRODUCTS, WHETHER DIRECT OR  INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH DATA AND  SOFTWARE PRODUCTS. 

WEATHERFLOW PROVIDES THE DATA AND SOFTWARE PRODUCTS FOR USE  ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS.  WEATHERFLOW HEREBY DISCLAIMS ALL WARRANTIES AND 

REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE  DATA AND SOFTWARE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY  WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR  PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE,  COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. USE OF ANY  MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE DATA  AND SOFTWARE PRODUCTS WILL BE AT YOUR OWN DISCRETION AND RISK  AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR  COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA  THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF  ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN  OR ORAL, OBTAINED BY YOU FROM WEATHERFLOW, ITS EMPLOYEES OR  REPRESENTATIVES WILL CREATE ANY WARRANTY. 

YOU AGREE AND ACKNOWLEDGE THAT YOU ASSUME FULL, EXCLUSIVE,  AND SOLE RESPONSIBILITY FOR YOUR USE OF AND RELIANCE ON THE DATA AND  SOFTWARE PRODUCTS, AND FURTHER AGREE AND ACKNOWLEDGE THAT YOUR  USE OF AND RELIANCE ON THE DATA AND SOFTWARE PRODUCTS IS MADE  ENTIRELY AT YOUR OWN RISK. WINDSURFING, SAILING, KITEBOARDING, KITING,  KITESURFING, YACHTING, FISHING, SAILBOARDING, BOARDSAILING, SNOW  KITING, AND OTHER SPORT ACTIVITIES (“SPORT ACTIVITIES”) CAN BE  DANGEROUS. THE DATA AND SOFTWARE PRODUCTS DO NOT AND ARE NOT  INTENDED TO MAKE ANY RECOMMENDATIONS OR SUGGESTIONS AS TO THE  SAFETY, ADVISABILITY, OR RISKS INVOLVED WITH ANY SPORT ACTIVITIES AT  ANY GIVEN TIME. THE INFORMATION PROVIDED BY THE DATA AND SOFTWARE  PRODUCTS IS NOT INTENDED TO REPLACE THE INFORMATION OR CONDITIONS  YOU PERSONALLY OBSERVE. IN THE EVENT THAT THE INFORMATION OR  CONDITIONS YOU OBSERVE ARE DIFFERENT THAN THE INFORMATION PROVIDED  BY THE DATA AND SOFTWARE PRODUCTS, YOU MUST NOT RELY ON THE DATA  AND SOFTWARE PRODUCTS. FURTHER, THE DATA AND SOFTWARE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RELEASE AS  CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE  PERFORMANCE AND, AS SUCH, WEATHERFLOW SPECIFICALLY DISCLAIMS ANY  EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES AND USES.  

INDEMNIFICATION

You indemnify and hold WeatherFlow harmless from any demands, loss,  liability, claims, or expenses (including attorneys’ fees), made against WeatherFlow by any  third party arising out of or in connection with your use of the Data and Software Products.  You indemnify, defend, and hold harmless WeatherFlow, its officers, directors, employees,  suppliers, licensors, affiliates, and successors from and against any losses, damages,  liabilities, demands, judgments, settlements, fines, costs, and expenses (including  attorney's fees and costs) (“Losses”) arising out of or relating to any claims that you have  used the Data and Software Products in violation of another party's rights, in violation of any law, in violation of any provisions of this Agreement, or any other claim related to  your use of the Data and Software Products. Without limiting the foregoing, you agree to  indemnify, defend, and hold harmless WeatherFlow against any and all Losses resulting  from any kind of injury or damage to person or property arising out of or resulting from  any Sport Activities in which you engage. WeatherFlow reserves the right, at your expense,  to assume the exclusive defense and control of any matter for which you are required to  indemnify WeatherFlow, and you agree to cooperate with WeatherFlow’s defense of these  claims. You agree not to settle any such matter without WeatherFlow’s prior written  consent. WeatherFlow will use reasonable efforts to notify you of any such claim, action,  or proceeding when we become aware of it. 

GENERAL

This license will take precedence over any conflicting terms published by a third party that you may have accepted (or in the future may be required to accept) in connection  with your access to or use of the Data and Software Products. From time to time, and at  any time, we may modify the terms of this License. Your continued access to and use of  the Data and Software Products after such changes are effective is your acknowledgment  and agreement to such modifications. You may not assign or transfer your rights in and to  the Data and Software Products, without the prior written consent of WeatherFlow.  WeatherFlow may assign its rights in and to the Data and Software Products to a third party  at its sole and absolute discretion, provided that the third party undertakes WeatherFlow’s  obligations to you under this Agreement. The representations, warranties, covenants,  liability, indemnification, and other obligations in these Terms will survive termination of  this Agreement. If any part of this Agreement is determined to be invalid or unenforceable,  then the invalid or unenforceable provision will be replaced with a valid, enforceable  provision that most closely matches the intent of the original provision and the remainder  of this Agreement will continue in effect. In the event any content, information, or material  on the Data and Software Products is in conflict with this Agreement, this Agreement will  control. Our failure to exercise or enforce any right or provision of the Terms will not  constitute a waiver of such right or provision. Any waiver of any part of the Terms will be  effective only with our written, signed consent. These Terms are governed by and  construed in accordance with the laws of the State of California without reference to the  principles of conflicts of laws thereof. The parties expressly stipulate that the 1980  Convention on Contracts for the International Sale of Goods will not apply, nor will the  Uniform Computer Information Transactions Act. 

QUESTIONS, REQUESTS, AND MORE INFORMATION

Questions, Requests, and More Information. If you have any questions about WeatherFlow, the Data and Software Products, or would like request a written copy of this Agreement,  please contact us at any time: 

WeatherFlow-Tempest Inc. 

921 S Clyde Morris Blvd
32114 Daytona Beach, FL

support@tempest.earth