This is a legally binding license agreement (the “License Agreement”). Please read it carefully. By clicking "I Agree" or installing or using the Climacell App and any updates to such App (collectively, the "App") provided by Climacell, Inc. ("Climacell" or "we") you agree to be bound by the terms of this License Agreement.
1.1. App License. Subject to the terms herein, Climacell hereby grants you a limited, personal, non-exclusive, non-transferable, non sub-licensable right to install and use the App solely on the device to which you have downloaded the App (the "Device") and only for the purpose of receiving weather updates based on your location. You shall be solely responsible to ensure that the App is properly installed and used.
1.2. Prohibited Uses. Other than the rights explicitly granted in this Agreement, you shall have no other rights, express or implied, in the App. Without limiting the generality of the foregoing, you agree and undertake not to, and not to allow any third party to: (i) sell, lease, sublicense or distribute the App, or any part thereof, or otherwise transfer the App; (ii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the App’s source code and/or any third party software provided by Climacell; (iii) modify, revise, enhance, or alter the App; (iv) copy or allow copies of the App to be made, unless expressly permitted herein; (v) represent that you possess any proprietary interest in the App; (vi) use the App in any illegal manner or for unlawful purposes.
1.3. Title & Ownership. The App is the property of Climacell or its licensors and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Climacell or its licensors. All right, title and interest in and to the App, any derivatives thereof and modifications thereto, including associated intellectual property rights, evidenced by or embodied in or attached, connected or related to the App, are and will remain with Climacell or its licensors. This License Agreement does not convey to you any interest in or to the App, but only a limited right of use in accordance with the terms herein. Nothing in this License Agreement constitutes a waiver of Climacell's or its licensors’ intellectual property rights under any law.
1.4. Third Party Software. The App may include third party component, which are made available pursuant to different terms than those contained herein. Please see the open source notice located at www.climacell.co/legal for additional notices required by our licensors.
2.1. Account Registration. You must be registered in order to use the App, by filling in the required information in the form in which we indicate the mandatory fields for completion. If you do not provide the required information in these fields, you will not be able to register. You must provide true, accurate and complete information.
2.2. Authentication. Login is authenticated with a password, which you should periodically change. You must maintain the confidentiality of your account login details for your account. You are solely responsible for the security of your login credentials and will not provide such login credentials to any third party. You are responsible for any use that occurs under your login credentials. If you believe an unauthorized person has gained access to your login credentials, you will notify us as soon as possible.
3.1. Payments. Climacell may offer the opportunity to purchase access to certain features of the App by means of one-time or recurring payments (“Subscription”) through an authorized Marketplace Provider. These payments require you to have an active account with a Marketplace Provider and provide a then-current and valid method of payment, such as a credit card or debit card (a "Payment Method"). Payments will be processed by your respective Marketplace Provider and not through Climacell. Any inquiries related to payments should be directed to your Marketplace Provider. You are responsible for all charges incurred in connection with your payments.
3.2. Subscriptions. By selecting a Subscription, you agree to pay the Marketplace Provider a subscription fee on a designated cycle for the App (the "Subscription Fee"). The first Subscription Fee will be charged to your Payment Method on the date the Marketplace Provider confirms your Subscription purchase. Thereafter, the Subscription Fee and any applicable tax and service fees will be charged to your Payment Method by your Marketplace Provider on a recurring basis in accordance with your designated cycle.
4.1. Performance. We do not guarantee that the App will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions. Without limiting the foregoing, in no event will Climacell be responsible for any slow-downs, failures or other malfunctions that are caused by your breach of this Agreement.
4.2. Assumption of Liability. You are solely and exclusively responsible: (i) for all actions you take in response to your usage of the App; (ii) to check for any alerts or warnings issued by the App and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as you deem appropriate as a result of your usage of the App. We are not responsible or liable for your reliance upon, or use of, the App, your actions in connection with the App, or any consequences resulting therefrom.
4.3. ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE APP AND HAVE THE APP PROVIDE ACCURATE, RELIABLE, EFFECTIVE AND ACTIONABLE DATA, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY ABOUT THE RELIABILITY, EFFECTIVENESS, ACCURACY OR COMPLETENESS OF THE APP, THE EXPECTED RESULTS, OUTCOMES OR ANY OTHER OPERATIONAL BENEFITS FROM UTILIZING THE APP.
4.4. THE APP IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIMACELL AND ITS LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO THE APP IS TO IMMEDIATELY UNINSTALL THE APP AND CEASE USE OF THE APP. CLIMACELL DOES NOT REPRESENT OR WARRANT THAT THE APP WILL OPERATE CONTINUOUSLY, UNINTERRUPTED, OR BE ERROR FREE.
4.5. CLIMACELL SHALL IN NO WAY BE LIABLE TO YOU IN THE EVENT OF SYSTEMS OR COMMUNICATIONS ERRORS, BUGS OR VIRUSES RELATING TO THE APP OR RESULTING IN LOSS OF DATA BY YOU OR ANY OTHER DAMAGE TO YOUR DEVICE OR YOUR ABILITY TO USE IT, AND CLIMACELL RESERVES THE RIGHT TO TAKE ANY OTHER ACTION TO CORRECT SUCH ERRORS (IF ANY) SAVE THAT CLIMACELL IS NOT REQUIRED TO PROVIDE ANY BACK UP NETWORK OR SYSTEMS OR SIMILAR SERVICES.
4.6. You the user assume the entire risk related to use of information provided by the app. Climacell provides such information "as is," and disclaims any and all warranties, whether express or implied, including (without limitation) any implied warranties of merchantability or fitness for a particular purpose. In no event will Climacell be liable to you or to any third party for any direct, indirect, incidental, consequential, special or exemplary damages or lost profit resulting from any use or misuse of this data.
IN NO EVENT SHALL CLIMACELL HAVE ANY LIABILITY TO YOU UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT. IN NO EVENT WILL CLIMACELL BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT CLIMACELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.1. You agree to indemnify and hold harmless us and our directors, officers, employees, and contractors, upon our request and at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any complaint, claim, plea, or demand brought by a third party in connection with, arising from or otherwise related to (a) your breach of this Agreement or (b) your gross negligence or willful misconduct.
6.2. If we seek indemnification from you, we will provide you with (i) prompt written notice of any indemnifiable claim; (ii) reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at your expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that we may settle or reach compromise on any such claim without your consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on you. We will have the right to participate, our own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of our own selection.
Climacell may terminate this License Agreement at any time without cause without any requirement of notice. Upon any such termination or expiration, you shall no longer be permitted to use the App, and shall delete all copies of the App in your possession.
You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
This License Agreement is exclusively governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its rules of conflict of laws. Any dispute, controversy or claim which may arise out of or in connection with this License Agreement, shall be submitted to the sole and exclusive jurisdiction of the competent courts in Boston, Massachusetts. Subject to the following sentence, each party hereto hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens. Notwithstanding the foregoing, we may also lodge a claim against you: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against us; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over you.
This Agreement constitutes the entire agreement between the parties. Climacell may modify the terms of this License Agreement by making the updated version of this License Agreement available through the App, without requiring any further notice to you. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. You shall not assign this Agreement without Climacell’s prior written approval, and any such purported assignment shall be null void. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Sections 1.2, 1.3, 1.4, 5, 6, 9 and 10 shall survive the termination of this Agreement.