Terms and Conditions

Terms and Conditions of Use for Synoptic Services

This Agreement (the “Agreement”) is made and entered into as of the date hereof (the “Effective Date”) by and between your company (“Client”) and SYNOPTIC DATA PBC, a Delaware public benefit corporation whose business office is at 4094 Majestic Ln, #199, Fairfax, VA 22033 (“Synoptic”), each a “Party,” and collectively the “Parties”.

WHEREAS, Synoptic operates a data hub service providing data input, output, storage, archiving, manipulation, display, quality control, and other services as further described on Attachment A hereto (the “Data Access Service”) for the provision of Public Data Content (defined in Section 2.1 below) and Restricted Data Content (defined in Section 2.1 below); and

WHEREAS, Client wishes to use, as applicable (i) Synoptic’s free, non-commercial, open access Data Access Service for Public Data Content or (ii) Synoptic’s fee-based, commercial Data Access Service for Restricted Data Content as set forth on any statement of work that becomes part of this Agreement.

NOW, THEREFORE, for good and valuable consideration and based upon the foregoing premises, the Parties agree as follows:

SECTION 1:  TERM OF AGREEMENT
The term of this Agreement (as it may be extended from time to time as set forth below, the “Term”) shall begin on the date hereof and continue for a period of 12 months unless the Term is extended by the mutual agreement of the Parties in writing at least 30 days prior to the end of the Term or terminated by either Party pursuant to the rights set forth in Section 9. This Agreement is non-refundable.

SECTION 2: DATA ACCESS SERVICE

2.1 General. The term “Data Access Service” means the Synoptic API that enables Client to access and ingest Data Content (defined below) and includes the services provided by Synoptic as described in Attachment A and incorporated herein. The term “Data Content” refers, collectively, to Public Data Content and Restricted Data Content, both defined below.

2.2 Public Data Content.

(a) “Public Data Content” collectively means data acquired by Synoptic from publicly available sources consisting of (a) the attributes of earth and weather data and (b) any other earth and weather data that Synoptic is obligated to or otherwise does deliver to Client for free on a non-commercial basis as part of the Data Access Service.

(b) Subject to the terms of this Agreement, Synoptic hereby provides Client accessing Public Data Content with a non-exclusive, worldwide, non-transferable license to use, reproduce, promote, publicly perform, publicly display, and transmit the Public Data Content downloaded via the Data Access Service.

(c) Subject to the provisions of this Agreement, Client may publish and use Public Data Content in any service offered by Client (“Client Offering”) including the following: (a) display and use the Public Data Content as part of a Client Offering and (b) integrate, merge, and/or combine the Public Data Content with other data to create new works (“Derivative Works”).

(d) Notwithstanding the foregoing, a Client accessing Public Data Content is subject to the following restrictions:

(i) all usage of Public Data Content is limited to internal purposes unless prior written consent is received from Synoptic;

(ii) a Client may display a map containing Public Data Content for a non-commercial purpose so long as (A) Client obtains the prior written consent of Synoptic and (B) proper attribution to Synoptic is displayed on the Client’s website; and

(iii) in the event that Synoptic discovers that Public Data Content is being used for any commercial purpose without its prior written consent, Synoptic reserves the right to immediately terminate the Client’s access to such Public Data Content and to terminate this Agreement.

2.3 Restricted Data Content.

(a) “Restricted Data Content” collectively means (a) data acquired by Synoptic from private sources and/or (b) data from any Synoptic value-add services where the data has been transformed or otherwise modified through use of Synoptic’s advanced data services including, but not limited to, Advanced Quality Control.

(b) Subject to the terms of this Agreement and the restrictions in Section 2.3(c) below, Synoptic hereby provides Client accessing Restricted Data Content with a non-exclusive, worldwide, non-transferable license to use, reproduce, promote, publicly perform, publicly display, and transmit the Restricted Data Content downloaded via the Data Access Service.

(c) Notwithstanding the foregoing, a Client accessing Restricted Data Content is subject to the following restrictions:

(i) the Client may use any Restricted Data Content in its original form in any internal Client Offering;

(ii) for any external-facing Client Offering, Client may post summary statistics, summary plots, summary maps and similar summary items in published or electronic form, so long as the Restricted Data Content cannot be decompiled, reverse engineered, or otherwise extracted from Client’s Derivative Works;

(iii) Except as set forth in subsections (v) and (vi) below, Client shall not have the right to redistribute the Restricted Data Content (either real-time or archive) without the prior written approval of Synoptic, such approval to be given or withheld in Synoptic’s sole discretion; and

(iv) Client is subject to the limitations set forth in Section 2.2 above with respect to its use of Public Data Content.

2.4. General Restrictions on Use of Data Content. Client agrees that it will not use Data Content in any way that competes with Synoptic or is harmful to its business. Without limiting the foregoing, Client agrees that it will not engage in any extension or redistribution of the Data Access Service or Data Content to third parties in a manner that would be reasonably expected to cannibalize the sales or business or business of Synoptic without first obtaining the prior written consent of Synoptic. In the event that Synoptic discovers that Client is engaging in any such conduct, Synoptic reserves the right to immediately terminate this Agreement and Client’s access to the Data Content.

2.5. License. For avoidance of doubt, the grants of licenses pursuant to this Section 2 do not purport to be a claim by Synoptic of license to or ownership of publicly available data, but rather is a license for any rights that Synoptic may possess in the Public Data Content, such as rights arising from Synoptic’s aggregation, selection, and arrangement of publicly available data. Accordingly, Synoptic makes no representations that it owns or has intellectual property rights in such Public Data Content.

2.6  Provisional Data. Client acknowledges that all the Data Content provided in the Data Access Service is considered Provisional Data.  Provisional Data is observational data that has been collected under applicable professional standards but may not yet have been officially reviewed or edited by the entity that collected the data.  Such data is subject to material change after the collectors conduct a review of the data, which may occur anywhere from hours to months after the data valid time.  The provisional nature of the data should be considered by Client, especially in situations involving its use in matters that concern personal or public safety or the conduct of business that involves substantial monetary or operational consequences. Accordingly, Client will be solely responsible for any use which it makes of the Data Content. Notwithstanding the provisions of Section 14.2, in no event will Synoptic be liable to Client for any damages or claims incurred by Client due to the provisional nature of the Data Content provided by Synoptic under this Agreement.

2.7 Intellectual Property Rights. The term “Intellectual Property Rights” means any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation: (i) trade dress, trademark and service mark rights; (ii) patents, patent applications, patent rights, design rights and utility models; (iii) rights associated with works or authorship including but not limited to copyrights, copyright applications, copyright registrations, mask works rights, mask work applications, mask work registrations and database rights; (iv) rights relating to trade secrets, know-how and Confidential Information (defined in Section 5.2); (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; and (vi) divisionals, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, as hereafter created, filed, used or acquired, and whether registered or unregistered; and (vi) any moral rights related to the foregoing. Other than as expressly set forth in this Agreement, all Intellectual Property Rights of Synoptic existing on the Effective Date are and shall remain the exclusive property of Synoptic.  All Intellectual Property Rights not expressly granted by Synoptic are reserved.  Client hereby acknowledges that Synoptic’s Data Access Service is protected by copyright laws and other laws pertaining to Intellectual Property Rights in the United States and other countries and that the Data Access Service embodies valuable Confidential Information of Synoptic and its suppliers, the development of which required the expenditure of considerable time and money.

2.8 Competitive Services. Except as expressly permitted herein Client shall not, and shall not assist or permit any third party to: (i) copy, modify, translate or create Derivative Works of any part of the Data Access Service,  (ii) disassemble, decompile or in any other way reverse engineer any portion of the Data Access Service or attempt to disable any security devices or codes incorporated into or distributed with the Data Access Service, or (iii) use Confidential Information (defined in Section 5.2) of Synoptic or take any other action to develop products or services competitive with the Data Access Service during the Term of this Agreement and within two years after its termination.

2.9 No Liability. Client acknowledges that (i) in providing the Data Access Services, Synoptic operates on the Amazon Web Services (“AWS”) platform and relies on AWS to provide data security, integrity and backup consistent with AWS standards (collectively, “AWS Services”), and (ii) Synoptic is not liable for any failure or breach by AWS in providing AWS Services to Synoptic.

2.10 Extension of Services. Any extension of the Data Access Service or redistribution of Data Content by Client to third parties through an online page, tool or application is subject to the terms of Section 6.2 below and Item 9 of Attachment A.

2.11 Customer Support Response Time. Customer support response time, as set forth in any applicable statement of work, is measured in number of Business Days. A “Business Day” is defined as a standard working business day (Monday – Friday), not including federally observed holidays in the US.

SECTION 3: FINANCIAL CONSIDERATIONS

3.1 Service Fees. In exchange for the services provided to Client under this Agreement, Client shall pay the associated service fees as defined in the contract, if applicable.

3.2 Payment. Synoptic shall invoice Client for the service fees on a monthly or annual basis as defined in the contract, if applicable. Payment is due thirty (30) days from receipt of invoice and can be done by check, wire, or ACH.

3.3 Pro-Rata Invoices. In the event of termination of this Agreement, Synoptic shall invoice Client on a pro-rata basis for the services rendered up to the date of termination.

SECTION 4: CONTACTS

4.1 The following representatives shall be the primary Points of Contact for the Parties:

For Synoptic:
Business: info@synopticdata.com
Billing: billing@synopticdata.com
Technical: support@synopticdata.com

For Client, as provided by Client to Synoptic pursuant to the signup process for services under this Agreement.

SECTION 5:  CONFIDENTIALITY

5.1 Separate Agreement. If a separate confidentiality agreement or non-disclosure agreement is executed by the Parties, it is hereby incorporated herein by reference.  In the event of any conflict between the terms of any such agreement and the terms of this Agreement, the terms of this Agreement will control.

5.2 Confidential Information. “Confidential Information” means any (i) non-public information of a Party, whether in written, oral, graphic, electronic or any other form, made available by or on behalf of one Party (the “Discloser”) to the other Party (the “Recipient”) under or in connection with this Agreement, including, without limitation, any information relating to a Party’s current and planned products and services, technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, customer lists, business forecasts and marketing plans,  (ii) the terms of this Agreement (including pricing and discounts), (iii) other information that is marked as “Confidential” or some other label indicating its confidential nature or, if disclosed orally, is identified as confidential at the time of such disclosure, or (iv) information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.   Information that is confidential or proprietary to either Party shall be clearly marked as is reasonably required in all correspondence or exchange of information.

5.3 Obligations. All Parties shall protect the Confidential Information of the other Party as if it were their own.  All Parties agree to keep all such Confidential Information in confidence, prevent the disclosure to any person(s) outside their respective organizations or any person(s) within their organizations not having a need to know, and to use such Confidential Information only in connection with their obligations under this Agreement, associated task orders, or other governing documents.

5.4 Exceptions. The above provisions notwithstanding, neither Party shall be liable for the disclosure or use of Confidential Information if it is:

(a) in the public domain at the time of disclosure, or is subsequently made available to the general public without restriction by the Discloser;

(b) at the time of its disclosure, independently known by the Recipient or independently developed by the Recipient without restrictions on its use, and there is adequate documentation to demonstrate either condition;

(c) used or disclosed inadvertently despite the exercise of the same degree of care that each Party takes to preserve or safeguard its own Confidential Information;

(d) used or disclosed with the prior written approval of the Discloser;

(e) disclosed without restriction to the Recipient from a source other than the Discloser;

(f) used or disclosed after a period of time mutually agreed upon in writing by the Parties; or

(g) disclosed as required by court order.

5.5 Good Faith. No sheet or page of any written or electronic material will be labeled “Confidential” or “Proprietary” which is not, in good faith, believed to contain such information.

SECTION 6: PUBLICITY AND STATEMENTS; EXTENSION SERVICE

6.1 Disparaging Statements. Client shall not make disparaging statements, orally or in writing, spontaneously or in response to an inquiry, to any entity or person, including without limitation other customers or potential customers of Synoptic, concerning Synoptic services or a dispute under this Agreement, if any.

6.2 Extension of Services. Any extension by Client of the Data Access Service in any form (collectively, an “Extension Service”) for use by Client’s customers, Client’s customer’s customers or any third party (each, an “End User”) in connection with any application or website is subject to the following terms and conditions:

(a) Client may modify the Extension Service to insert its identifying information such as name, logo, address, contact persons, telephone numbers, fax numbers, e-mail addresses and web sites but may not rebrand or “white box” the Extension Service or otherwise misrepresent the source of the Extension Service as part of Client’s solution. Client understands and agrees that Client’s misrepresentation as to the source of the Extension Service is a material breach of Client’s obligations under this Agreement.

(b) Client will at all times in connection with such Extension Service: (i) conduct business in a manner that favorably reflects on the Extension Service and the good name, goodwill and reputation of Synoptic; (ii) make no false or misleading representations or advertisements with regard to Synoptic or the Extension Service; and (iii) make no representations, warranties or guarantees to End Users with respect to the specifications, features or capabilities of the Extension Service that are inconsistent with any materials or documentation provided by Synoptic regarding the Data Access Service.

(c) Client will identify Synoptic as the source of the Extension Service in its marketing and sales materials and on Client’s website, as well as in all press releases related to projects executed with the use of the Data Access Service.

(d) Client will obtain and maintain at its own expense all approvals, consents, permissions, licenses, and other governmental or other third-party approvals, if any, necessary for Client to market, distribute, and, support the Extension Services. Client will comply with all applicable laws, statutes, ordinances, directives, and regulations that apply to the activities of Client in connection with the Extension Services including, but not limited to, relevant privacy and piracy laws.

(e) Client will use any Synoptic trademarks (the “Marks”) in accordance with applicable law as well as Synoptic’s policies or guidelines regarding advertising and trademark usage as established from time to time and provided to Client.  When using the Marks, Client must indicate that Synoptic is the owner of such Marks and that Client is using the Marks with permission from and on behalf of Synoptic.  Client acquires no right in the Marks by its use. If Client acquires any goodwill in any of the Marks, all such goodwill will automatically vest in Synoptic and Client shall take all such actions or execute any documents necessary to affect such vesting.  Client shall not contest the validity of any of the Marks or Synoptic’s exclusive ownership of the Marks. Client shall provide all reasonable assistance, including execution of documents as requested by Synoptic, to protect its trademark rights. Client shall notify Synoptic promptly of any known infringements of the Marks.

(f) Any violation of this Section 6.2 shall be deemed a material breach of this Agreement.

SECTION 7: COMPLIANCE WITH LAWS

Both Parties shall comply with all applicable laws, rules, regulations and other legal requirements which deal with or relate to their performance under this Agreement in accordance with the terms of this Agreement.

SECTION 8:  ASSIGNMENT

This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.  Neither Party may assign, sublicense or otherwise transfer the rights under this Agreement, including any licenses granted hereunder, without the other Party’s prior written consent, which will not be unreasonably withheld.  Notwithstanding the foregoing, Client and Synoptic will have the right to assign or sublicense any or all of its rights and obligations to an affiliated company or acquiring company in a change of control transaction upon notice to the other Party, but without first requiring the other Party’s consent.

SECTION 9:  TERMINATION

9.1 Notice. Either Party may terminate this Agreement by giving sixty (60) days’ prior written notice to the other Party.

9.2  Breach. In the event that either Party shall commit any breach of or default in any of the terms and conditions of this Agreement, including the Terms of Use and any Statement of Work attached hereto, and shall fail to remedy the default or breach within thirty (30) days after receipt of written notice thereof from the other Party, the Party giving notice may, at its option and in addition to any other remedies which it may have at law or in equity, immediately terminate this Agreement by sending notice of termination in writing to the other Party to that effect, and the termination shall be effective as of the date of the receipt of the notice.

9.3 Bankruptcy. Either Party may immediately terminate this Agreement by sending notice of termination in writing to the other Party upon the occurrence of any of the following events: (i) a receiver is appointed for either Party or its property; (ii) either Party makes a general assignment for the benefit of its creditors; (iii) either Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 Days; or (iv) either Party is liquidating, dissolving, or ceasing to do business in the ordinary course or otherwise terminates its business operations.

9.4 Right and Obligations. Termination of this Agreement by either Party for any reason shall not affect the rights and obligations of the Parties accrued prior to the date of termination of this Agreement, which shall survive the termination of this Agreement.

9.5 Effect of Termination. Upon the termination or expiration of this Agreement: (a) the due dates of all outstanding invoices will automatically be accelerated so they become due and payable on the date of termination or expiration, even if longer terms had been previously provided; and (b) all rights and licenses granted pursuant to this Agreement, except those expressly identified as surviving termination, shall automatically cease.

SECTION 10:  INDEPENDENT CONTRACTOR

10.1 Independent Contractors. In the performance of all services hereunder, the Parties shall be deemed to be and shall be independent contractors and, as such, neither shall be entitled to any benefits applicable to employees of the other.

10.2 No Authorization. Neither Party is authorized or empowered to act for the other for any purpose and shall not on behalf of the other enter into any contract, warranty, and/or representation as to any matter. Neither shall be bound by the acts or conduct of the other.

10.3 Not Exclusive. Nothing herein should be construed to represent an exclusive relationship between the Parties.  If exclusivity is required or desired by any Party, the Parties shall establish such exclusivity via a separate agreement, or an appropriate amendment to this Agreement.

SECTION 11: WARRANTIES

11.1 Mutual Warranties.  Each Party represents and warrants to the other that it has the full power to enter into this Agreement and to carry out its obligations under this Agreement.

11.2 Additional Warranties by Synoptic.  Synoptic warrants that the services provided under this Agreement will meet applicable specifications and will comply with applicable industry standards.

11.3 No Other Warranties.  NO OTHER WARRANTIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHER IMPLIED WARRANTIES ARISING FROM THE CUSTOM OR USAGE OF THE TRADE.

SECTION 12. ARBITRATION

12.1 General. If the Parties are unable to resolve a dispute after a 14-day escalation period, the dispute will be settled by binding arbitration at a location mutually agreed to by the Parties under the Commercial Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Commercial Disputes) (the “Rules”) of the American Arbitration Association (“AAA”) then in effect and in accordance with the Rules.  The Parties will mutually agree to one arbitrator within 30 Days of the filing of the written submission to arbitrate in accordance with Rule R-11.  The arbitrator will be knowledgeable and experienced in the subject matter of this Agreement.  If the Parties cannot agree upon an arbitrator within the time provided, the Parties agree to permit the AAA to appoint an arbitrator under the Rules meeting the foregoing qualifications from the National Roster.  The arbitrator will set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties an adequate opportunity to discover relevant information regarding the subject matter of the dispute.  The arbitrator will rule upon motions to compel or limit discovery and will have the authority to impose sanctions, including attorney’s fees and costs, if the arbitrator determines that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification.  The arbitrator will render a decision in writing within 120 Days of the commencement of the arbitration proceeding, and in no event will such a decision be in the form of a reasoned award.  The arbitrator’s decision shall be final and binding on the Parties.  Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.

12.2 Fees. The non-prevailing Party, as determined by the arbitrator, will pay the fees of the arbitrator, the administrative fee of the AAA, and the expenses (including reasonable attorneys’ fees) of the prevailing Party incurred in connection with the arbitration.

12.3 Limitation on Damages. Notwithstanding anything to the contrary, the arbitrator will not award damages inconsistent with Sections 13 (Indemnification) and 14 (Limitation of Liability), or any other relevant portions of this Agreement, and the Parties irrevocably waive the award of any such damages.

SECTION 13. INDEMNIFICATION

13.1 Cross-Indemnification.  Each Party (the “Indemnifying Party”) will defend, indemnify and hold the other Party and its officers, directors, employees and subcontractors (collectively, the “Indemnified Party”) harmless from and against any and all third-party claims, suits, losses, damages, liabilities, settlement, costs, or expenses (including legal expenses and the expenses of other professionals) (collectively “Claims”) as incurred, arising out of or in connection with any actual or alleged:

(a) act or omission of the Indemnifying Party in the performance of this Agreement;

(b) negligent or willful acts or omissions of the Indemnifying Party within the scope of this Agreement which result in personal injury (including death) or damage to property; or

(c) infringement of a third party’s intellectual property rights or any other rights.

13.2 Indemnification Procedure.  The Indemnified Party will provide the Indemnifying Party with prompt written notice of a Claim and permit the Indemnifying Party to control the defense, settlement, adjustment or compromise of any Claim.  The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim.  The Indemnified Party will have no authority to settle any Claim on the Indemnifying Party’s behalf.

13.3 No Limitation of Remedy.  Nothing in this Section will limit any other remedy of the Parties.

SECTION 14:  LIMITATION OF LIABILITY

14.1 IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, SHAREHOLDERS, SUBCONTRACTORS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, LOST PROFITS, LOSS OF USE, OR LOSS OF OR DAMAGE TO DATA, SYSTEMS OR PROGRAMS ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2 NEITHER PARTY WILL BE LIABLE TO THE OTHER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY AMOUNTS IN EXCESS OF THE FEES PAID BY CLIENT TO SYNOPTIC FOR THE LAST TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM.  THIS LIMITATION ON LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW. The Parties expressly acknowledge and agree that Synoptic has set its prices and has entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Synoptic and Client and form an essential basis of the bargain between the Parties.

14.3 THE LIMITATION ON LIABILITY SET FORTH IN SECTION 14.2 WILL NOT APPLY TO ANY DAMAGES ARISING OUT OF A BREACH OF CONFIDENTIALITY.

SECTION 15: INSURANCE

Each Party will, at its own expense, provide and maintain in effect all insurance coverage required by law or regulation, or customary for the industry, to include, but not limited to: worker’s compensation, employer’s liability insurance, commercial general liability insurance, and umbrella or excess liability insurance.

SECTION 16: NON-WAIVER OF RIGHTS

The failure of either Party to insist upon strict performance of any of the terms and conditions in this Agreement or to exercise any rights or remedies shall not be construed as a waiver of its rights to assert any of same or to rely on any such terms or conditions at any time thereafter.

SECTION 17:  SEVERABILITY

If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the fullest extent possible in accordance with the Parties’ intent as of the Effective Date, and without effect on the remaining provisions of this Agreement, which shall remain in full force and effect.

SECTION 18:  GOVERNING LAW

This Agreement shall be governed by the laws of the State of Utah, without giving force and effect to its choice of law provisions.  The United Nations Convention on Contracts for the International Sales of Goods and the Uniform Computer Information Transactions Act (UCITA) are specifically excluded.

SECTION 19: FORCE MAJEURE

Neither Party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.  Each Party will notify the other of any factor, occurrence, non-occurrence or event which is likely to cause a material delay in performance of the Party’s obligations under this Agreement or that is likely to adversely affect the Party’s ability to meet any obligation under this Agreement.

SECTION 20: TERMS OF USE

The terms of use for the Client’s use of the Data Access Service are included as Attachment B.  These terms of use apply to all Client activities and personnel.

SECTION 21: MODIFICATION AND WAIVER

Any modifications to this Agreement must be in writing and be signed by an authorized representative of each Party.  A Party’s decision not to insist on strict performance of any requirement of this Agreement shall not operate or be construed to waive any future omission or breach, or any other provision of this Agreement.

SECTION 22:  FINAL AND ENTIRE AGREEMENT

This Agreement represents the entire agreement between the Parties, supersedes all previous agreements and understandings, where oral or written, with respect to the subject matter of this Agreement.

SECTION 23:  EXECUTION OF AGREEMENT IN COUNTERPARTS

This Agreement may be executed in counterpart with the same effect as if both Parties signed the same document.  The counterparts shall be construed together and shall constitute one and the same original Agreement.  A signature on this Agreement by one Party communicated to the other by facsimile transmission or email will constitute execution of this Agreement.

SECTION 24: CURRENCY

All dollar amounts and payments under this Agreement shall be in US Dollars.

SECTION 25: TAXES

 Synoptic’s prices under this Agreement are exclusive of all sales, use, value-added, withholding, net income, gross receipts and other taxes or duties (collectively, “Taxes”) incurred in connection with the Data Access Service and other services provided hereunder. Each Party will bear its own Taxes in connection with the transactions under this Agreement, and all such Taxes will be the financial responsibility of the Party who is obligated by operation of law to pay such Tax. Each Party will promptly pay to the other Party any Taxes that are owed by that Party solely as a result of entering into this Agreement and which are required to be collected under applicable law. A Party may provide to the other Party a valid exemption certificate in which case the other Party will not collect the Taxes covered by such certificate. If any Taxes are required to be withheld on payments made by one Party to the other, the paying Party will deduct such Taxes from the amount otherwise owed and pay them to the appropriate taxing authority. The paying Party will secure and deliver to the other Party an official receipt for those Taxes and other documents reasonably requested by the other Party in order to claim a foreign tax credit or refund. The Parties will use reasonable efforts to ensure that any Taxes withheld are minimized to the extent possible under applicable law.


Attachment A
Data Access Service

Synoptic provides the following services (collectively, the “Data Access Service”)

1. Data Storage and Security.

Synoptic stores all observation data in a fault-tolerant, load-balanced, scalable data system with full backup. Synoptic provides end-to-end security and end-to-end privacy, in accordance with customer mandates and security best practices. For US government agencies and customers, a higher level of federal security procedures is available (additional fees may be required).

2. Data Delivery.

Synoptic provides customers with access to all applicable data available in their service tier via the Synoptic API, which allows ingestion of the observation data into the customer’s software applications and databases. The Synoptic API is a RESTful web service suitable for incorporation into any application with internet access. Synoptic provides technical support to Client in a manner commensurate with their service tier to facilitate use of the Synoptic API and libraries.

If provided in their service tier, Synoptic will work with Client to optimize their data request protocols so that the data feed applications and request levels described above will typically satisfy their requirements. If additional capacity or capabilities are required, customized data feed applications and additional extra request volumes are available (additional fees may be required).

The Synoptic Data Access Service focuses on delivering real-time observations in the most efficient manner possible. Historical observation data is also available, but if large historical data sets are required, these are more efficiently handled through an offline request and delivery via bulk download services (additional fees may be required).

3. Data Quality Control.

Working with industry-standard and proprietary procedures developed in-house, Synoptic applies a standardized set of Quality Control (QC) procedures to all incoming data. These procedures have their foundation in industry-standard QC procedures, including common range, buddy, and internal consistency checks. If included in their service tier, available checks also include Advanced Quality Control proprietary Synoptic-developed routines to test for problems specifically associated with observing network operations.

4. Collection of Customer Observation Data.

For those Client’s that operate their own sensor networks, Synoptic can coordinate with the Client’s technical staff to ingest Client data via industry standard data formats (commonly including CSV, METAR, NetCDF, JSON, and XML), metadata formats (commonly including CSV, SensorML, Starfish Fungus Language, JSON, XML, and manual entry via web form), and data transmission protocols (including http, ftp, and LDM) in order to redistribute the data to customers via the Synoptic API. Other industry-standard data formats and protocols may also be available, and Client-generated formats and protocols can also be supported (additional fees may be required).

Data can also be made available to other Synoptic customers at the Client’s discretion. Synoptic allows Clients to control access to their data through data rights management protocols and procedures. These access controls ensure that data is released only to entities and classes of users specified by the data owner and that any required payments are implemented and enforced.

Note that additional fees may be required in support of the services described above.

Under the baseline Data Access Service, Synoptic stores all raw observation data for its data redistribution Clients in perpetuity, subject only to a cap of one terabyte of new data per year. Storage of additional raw or processed data can also be supported (additional fees may be required).

5. Data Latency.

Synoptic strives to minimize latency from ingest to delivery by working with all data providers (including the Client, if applicable) to collect data from as close to the source as possible when practical (i.e. from the sensor or network operator rather than from a downstream aggregator). Synoptic guarantees a minimum latency from ingest to API response of 60 seconds, but in practice response times are typically much faster.

6. Data System Uptime.

Synoptic employs cloud-based computing and storage services from the industry’s leading providers. For fee-based Clients, Synoptic’s Data Access Service is provided with an annual uptime guarantee provided in any Statement of Work, attached as Attachment C or provided separately to Client, which is incorporated herein.

7. Detailed Technical Specifications.

The general functional capabilities that Synoptic provides to the Client are described above. Synoptic offers multiple methodologies and techniques to provide these capabilities, and these methodologies and techniques will often change over the course of a contract, due to evolving requirements and the emergence of new technical solutions. Detailed technical specifications are coordinated between Synoptic technical staff and the Client’s technical personnel and are updated as needed.

8. System Limitations and Misuse.

Synoptic’s Data Access Service is designed to support heavy request loads. However, in the event that Synoptic finds aggressive or inappropriate usage and/or identifies requests that compromise the usability of the Data Access Service for other customers, the offending requests will be temporarily blocked while the Synoptic technical staff contacts the user to resolve the issue.

9. Extension of Services.

Overview

Notes:

  1. The first column in the table refers to Client’s page, tool, app that is utilizing data obtained from Synoptic’s Data Access Service beyond direct, internal use by the Client.

  2. “Public” refers to publicly accessible website or a public audience seeing data obtained from Synoptic’s Data Access Service.

  3. Page, tool, app applies to any external (3rd+ party access) usage by Client.

  4. “For profit” means that the page, tool, app is directly related to, or a part of, a service or product offered by Client to generate revenue.

  5. “Attribution” refers to an attribution to be shown on the home or most direct page of view observations obtained from Synoptic’s Data Access Service stating “Data Aggregated by Synoptic” (or similar words) where “Synoptic” hyperlinks to synopticdata.com.

  6. A Client with Non-Commercial and Basic Commercial usage is required to report annual usage statistics to Synoptic, including the number of customers accessing, number of views, specific customers or industries accessing.

  7. A Client with Advanced Commercial use is required to include an indirect source of data summary that acknowledges Synoptic that does not include a hyperlink. This would be in a ‘data sources’ page or link where data obtained from Synoptic’s Data Access Service is used in an online page, tool, app.

Attachment B
Terms and Conditions of Use for Synoptic Services

These Terms and Conditions of Use (“Terms of Use”) govern your use of (i) the website of Synoptic Data PBC (“Synoptic”) located at www.synopticdata.com, and all other sites that may be linked to www.synopticdata.com by Synoptic and its affiliates (collectively, the “Site”) and (ii) all services provided by Synoptic on the Site or otherwise (collectively, the “Synoptic Services”). The Site and Synoptic Services are the property of Synoptic. BY USING THE SITE AND/OR THE SYNOPTIC SERVICES YOU BECOME A CLIENT AND AGREE TO THESE TERMS OF USE. These Terms of Use are in addition to the terms of any written agreement entered into between Synoptic and the user (the “Agreement”). In the event of any conflict or inconsistency between these Terms of Use and the Agreement, the Agreement shall control.

Synoptic reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. Your use of the Site and/or the Synoptic Services after any changes will mean that you agree to the changes. So long as you comply with these Terms of Use, Synoptic grants you a personal, non-exclusive, non-transferable, limited privilege to use the Site and/or Synoptic Services.

Content

All Data Content, computer code, user interfaces, text, visual interfaces, graphics, trademarks, photographs, logos, sounds, artwork and music (collectively, “Content”), including the design, expression, “look and feel”, structure, selection, arrangement and coordination of such Content, contained in the Site and Synoptic Services is owned, controlled or licensed by or to Synoptic and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided in these Terms of Use, no part of the Site, Synoptic Services, or its Content may be copied, republished, reproduced, posted, uploaded, encoded, publicly displayed, translated, transmitted, or distributed in any way (including any process that constitutes “mirroring”) to any other website, computer, server or other medium for distribution or publication or for any commercial undertaking, without Synoptic’s prior written consent.

Your Use of the Site and Synoptic Services

You may not use any automatic device, program, algorithm or methodology, including without limitation any “deep-link”, “page-scrape”, “robot”, “spider” or any similar or equivalent process, to access, acquire, copy or monitor any portion of the Site, the Synoptic Services or any Content, or in any way circumvent or reproduce the presentation or navigational structure of the Site, the Synoptic Services, or any Content, to obtain or attempt to obtain any documents, materials or other information through any means not purposely made available through the Site or the Synoptic Services. Synoptic reserves the right to bar any such activity in its sole discretion.

Synoptic’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site nor the Synoptic Services should be construed to alter such agreements. In the event of any conflict between these Terms of Use and any written agreement entered into by any party with Synoptic for the provision of Synoptic Services, the latter shall control.

Links to Other Sites and to the Synoptic Site

This Site may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to Synoptic’s customers and visitors to the Site. Such Linked Sites are not subject to control by Synoptic. Accordingly, Synoptic has no responsibility for the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will be required to make your own independent judgment regarding your interaction with these Linked Sites.

Acknowledgement of Provisional Nature of Data

All Data Content on the Site or in the Synoptic system (“Data Content”) is deemed to be provisional data subject to change. All Data Content is observational data that has been collected under applicable professional standards but may not yet have been officially reviewed or edited by the entity that collected the data. Such Data Content is subject to material change after the collectors conduct a review of the data, which may occur anywhere from hours to months after the data valid time. The provisional nature of Data Content should be considered by any Client or user of the Site or the Synoptic Services, especially in situations involving its use in matters that concern personal or public safety or the conduct of business that involves substantial monetary or operational consequences.

Client Account(s)

A Synoptic account is required to access all Synoptic Services. The Client is responsible for all activities that occur under its accounts, regardless of whether the activities are undertaken by Client employees or a third party (including contractors, affiliates, or agents). Synoptic and its affiliates are not responsible for unauthorized access to the Client’s account, other than to the extent caused by our breach of this Agreement. The Client will immediately notify Synoptic of any known or suspected unauthorized use(s) of any of its accounts, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of password or credit card information. The Client is responsible for keeping its login credentials confidential. The Client may not transfer its registration, username or password to any other person or entity or otherwise permit anyone to access or use its accounts. The Client may terminate its accounts and this Agreement at any time, and Synoptic reserves the right to terminate the Client’s account, in its sole discretion, at any time without notice. All information provided by the Client to Synoptic for use in establishing its accounts must be accurate, truthful, up-to-date, complete and must be maintained in that condition by the Client. The Client warrants that it is fully authorized to establish, use, and control any account to which the Client might have access.

Client-Contributed Content

Some areas of Synoptic Services may allow users to submit, transmit, post or upload information, data, metadata, text, graphics, other material, or Content (“Client-Contributed Content”) and allow users to share or provide that Client-Contributed Content with other users. The Client shall retain full ownership of its Client-Contributed Content, but Client agrees to grant Synoptic permission to use, copy, reproduce, process, adapt, modify, publish, transmit, edit, translate, make derivatives, display, and distribute such Client-Contributed Content in connection with providing its services to the Client and other users in accordance with the Client’s settings. In connection with providing the services, we may modify or adapt the format of Client-Contributed Content in order to transmit, display or distribute it over computer networks, in various media, or in specified formats, and/or make changes to Client-Contributed Content as are necessary to conform and adapt that Client-Contributed Content to any requirements or limitations of any networks, devices, services or media. Such changes will be carried out only as needed to affect such distribution, and Synoptic will never alter the actual information or underlying data contained within the Client-Contributed Content. Client grants Synoptic permission to conduct preparatory, administrative, and other technical actions required to support its services, including, for example, generation of image thumbnails or document previews, backup and archiving of data, and compressing of data for storage or delivery. Client gives Synoptic these permissions to do those things solely to provide its services, and Synoptic will carry out only those actions the Client has given Synoptic permission for, and only as needed to provide the services to the Client and other users. This permission also extends to trusted third parties Synoptic works with to provide the Synoptic Services.

Client agrees not to post Client-Contributed Content that: (i) contains any information or content that Client knows is not correct and current; (ii) contains any information or content that Client does not have a right to make available under any law or under contractual or fiduciary relationships; (iii) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to Client, to any other person, or to any animal; (iv) may create a risk of any other loss, damage or other liability to any person or property; (v) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (vi) may constitute or contribute to a crime or tort; (vii) contains any information or content that Synoptic deems to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene or otherwise objectionable; (viii) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets). Client represents and warrants that any Client-Contributed Content that Client posts does not and will not violate rights of any kind, including without limitation any copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity. Client represents and warrants that it owns any Client-Contributed Content or has the necessary licenses, rights, consents, and permissions relating to the Client-Contributed Content. Synoptic reserves the right, but is not obligated, to reject and/or remove any Client-Contributed Content that it believes, in its sole discretion, violates these provisions. Synoptic may choose to review Client-Contributed Content for compliance with these Terms of Use, but Client acknowledges that Synoptic has no obligation to monitor any information on the Synoptic Services. Synoptic is not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information Client may post or be able to access using the Synoptic Services.

Synoptic reserves the right at all times, but is not obligated, to remove or refuse to distribute any Client-Contributed Content on the Synoptic Services. Synoptic also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Use, including investigation of potential violations, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Synoptic, its users and the public. Client understands that publishing its Client-Contributed Content on the service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

Data Ownership and Copyright

Synoptic makes no representations that it owns or has intellectual property rights in the Data Content made available via Synoptic Services. Rather, Synoptic claims ownership of any rights that Synoptic may possess in the Data Content, such as rights arising from Synoptic’s unique aggregation, selection, and arrangement of publicly available data.

The Synoptic Services and Data Content available via the Synoptic Services are protected by copyright, trademark, and other laws of both the United States and foreign countries, and all Synoptic users are required to abide by these and any other relevant intellectual property laws, rules, and regulations. Synoptic responds to notices of alleged copyright infringement that are submitted in accordance with appropriate law and procedures. Synoptic will terminate the accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.

Privacy

Submitting information is strictly voluntary. By doing so, you are giving Synoptic your permission to use the information for the intended purpose. If you do not want to give Synoptic permission to use your information, simply do not provide it. However, not providing certain information may result in Synoptic’s inability to provide you with the information or services you desire.

Synoptic respects our users’ privacy and is committed to the protection of our users’ private information. During the creation of a Synoptic account, Synoptic will collect only such private information as is necessary to properly verify and administer that account. These may include, but are not limited to, items such as name, address, email address, and organizational information. This information will be used by Synoptic and third-party agents only as absolutely needed to properly administer Synoptic Services, support its users, and appropriately track usage. By using Synoptic Services, Client agrees to the collection of such information and to have that personal data collected, used, and processed by Synoptic and trusted third-party agents. Synoptic protects collected personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, or use.

In order to ensure proper use of the Synoptic Services, Synoptic will also track certain usage parameters of all user accounts through the use of cookies, logs, and other technologies. This data is used solely to ensure compliance with all applicable laws, rules, regulations, and to ensure proper usage of Synoptic Services.

Synoptic does not sell, trade, or otherwise transfer any personally identifiable information to any outside parties. Non-personally identifiable information, including anonymous usage logs and patterns, may be provided to other parties for appropriate uses.

Acceptable Use

By agreeing to these Terms of Use and using its Synoptic accounts, Client agrees not to misuse Synoptic Services and to abide by these Terms of Use, including the following policies:

Client will not: (i) use the Synoptic Services for any unlawful purposes or for promotion of illegal activities; (ii) post any content on Synoptic Services in violation of any applicable law, including intellectual property laws and right of privacy or publicity laws, or any contractual obligation; (iii) impersonate others through Synoptic Services or otherwise misrepresent its affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others; (iv) publish or post other people’s private or personally identifiable information, such as credit card numbers, street address or social security/national identity numbers; (v) send unsolicited communications, promotions or advertisements, or spam; (vi) publish or link to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy; (vii) access, tamper with, or use non-public areas of Synoptic Services, Synoptic’s computer systems, or the technical delivery systems of Synoptic’s providers; (viii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (ix) access or search the Synoptic Services by any means other than our publicly supported interfaces (for example, “scraping”); (x) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use Synoptic Services to send altered, deceptive or false source-identifying information; (xi) interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing Synoptic Services, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on Synoptic Services; (xii) use Synoptic Services for any harmful or fraudulent activities; (xiii) use Synoptic Services to create or promulgate any content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable; (xiv) act to avoid system restrictions through manual or electronic means; (xv) publish or post any content on Synoptic Services that contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xvi) publish or post any content that interferes or attempts to interfere with the proper working of the Site or the Synoptic Services or prevents others from using the Site or the Synoptic Services, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site or the Synoptic Services, or that otherwise negatively affects other persons’ ability to use the Site or the Synoptic Services, or inadvertently or intentionally disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Synoptic Services or any other site or system in use by another user of the Synoptic Services.

Fees

You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with your receipt of the Synoptic Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

Disclaimers

SYNOPTIC DOES NOT WARRANT THAT THE SITE OR ANY CONTENT, SYNOPTIC SERVICES OR FEATURES PROVIDED BY THE SITE OR SYNOPTIC SERVICES IS ERROR-FREE OR WILL BE UNINTERRUPTED, OR THAT ALL DEFECTS WILL BE CORRECTED, OR THAT ANY USE OF THE SITE OR THE SYNOPTIC SERVICES WILL PROVIDE SPECIFIC RESULTS. THE SITE, THE SYNOPTIC SERVICES, AND ALL CONTENT ARE DEEMED TO BE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL DATA PROVIDED ON THE SITE OR THE SYNOPTIC SERVICES IS SUBJECT TO CHANGE WITHOUT NOTICE. SYNOPTIC CANNOT ENSURE THAT ANY FILES OR OTHER DATA DOWNLOADED FROM THE SITE OR THE SYNOPTIC SERVICES WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. SYNOPTIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT. SYNOPTIC DISCLAIMS LIABILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO ANY SYNOPTIC SERVICES AND/OR YOUR USE OF THE SITE. BY ACCESSING THE SITE AND THE SYNOPTIC SERVICES, YOU ARE DEEMED TO ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SYNOPTIC SERVICES, THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST SYNOPTIC FOR DISSATISFACTION WITH THE SITE, THE SYNOPTIC SERVICES, OR ANY CONTENT IS TO STOP USING THE SITE, THE SERVICES OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The disclaimer set forth above applies to any damages, liability and/or injuries caused by any failure of performance, error, omission, deletion, defect, interruption, delay in operation or transmission, computer virus, communication line failure, theft, or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence, or any other cause of action.

Synoptic reserves the right to do any of the following, at any time, without notice: (i) to modify, suspend or terminate operation of or access to the Site, the Synoptic Services, or any portion of the Site or Synoptic Services, for any reason; (ii) to modify or change the Site, the Synoptic Services, or any portion of the Site or Synoptic Services, and any applicable policies or terms; and (iii) to interrupt the operation of the Site, the Synoptic Services, or any portion of the Site or Synoptic Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Limitation of Liability

Except where prohibited by law, in no event will Synoptic be liable to any Client of Synoptic Services or user for any consequential, indirect, exemplary, incidental or punitive damages, including lost profits or business opportunities, even if Synoptic has been advised of the possibility of such damages.

If, notwithstanding the other provisions of these Terms of Use, Synoptic is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site, the Synoptic Services or any Content, Synoptic’s liability shall not exceed: (i) the fees paid by Client to Synoptic during the Term, if Client has a separate agreement with Synoptic, or (ii) the total of any fees for Synoptic Services paid in the three months prior to the date of an initial claim made against Synoptic, if Client does not have a separate agreement with Synoptic. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply.

Indemnity

By accessing the Site or the Synoptic Services, you agree to indemnify and hold Synoptic, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Synoptic by any third party due to or arising out of or in connection with your use of the Site or the Synoptic Services.

Governing Law; Dispute Resolution

You agree that all matters relating to your use of the Site or the Synoptic Services, including all disputes, will be governed by the laws of the United States and by the laws of the State of Utah without regard to its conflicts of laws’ provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Salt Lake County, Utah, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are based in the European Union. If you are based in the European Union, you may make a claim in the courts of the country where you reside. Any claim under these Terms of Use must be brought within one year after the cause of action arises, or such claim or cause of action will be barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Synoptic and you arising out of or in connection with your use of the Site or the Synoptic Services, the Parties shall attempt, promptly and in good faith, to resolve any such dispute. If the Parties are unable to resolve any such dispute within a reasonable time (not to exceed 30 days), then either Party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the Parties shall be free to pursue any right or remedy available to them under applicable law.

Miscellaneous

You may not use any Content or any copy or adaptation of such Content, or any Synoptic Services offered on the Site, in violation of any applicable laws or regulations. Your use of the Site and the Synoptic Services is subject to all applicable local, state, national and international laws and regulations. You agree to abide by all such laws and regulations, including those relating to intellectual property, defamation, privacy, and the transmission or exportation of data.

If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, with the intent that these Terms of Use will remain in full force and effect. Synoptic’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Synoptic of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Synoptic and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties. You agree that these Terms of Use are specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.

Manner of Giving Notice

Except as otherwise specified in these Terms of Use, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant contact designated by you.

Feedback and Information

Any feedback you provide on the Site or the Synoptic Services will be deemed to be non-confidential. Synoptic will be free to use such information on an unrestricted basis.

Updated March 2023

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