PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you represent and warrant that you are at least 16 years of age and have received your parent’s or guardian’s permission to use the Services and that your parent or guardian has agreed to these Terms on your behalf).
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
WHAT ARE THE BASICS OF USING CLOUDNINE WEATHER?
You may browse the Service without registering, but some features may not be accessible unless you register using your email and provide us with certain information or data, such as your contact information and a password. You agree to provide us with accurate, complete, and updated registration information about yourself. You may not use an email that you do not have the right to use. You may not transfer your account to anyone else without our prior written permission.
You agree to only use the Services and Products you obtain for your own internal, personal use, and not on behalf of or for the benefit of any third party, including without limitation as part of any business, reselling of the Services, or other commercial use. You agree that you will not attempt to gain unauthorized API access to Services and Products, scrape data from Cloudnine Weather, or attempt to build derivative products. You agree to comply with all applicable laws that apply to your use of the Services. If your use of the Services or Products is prohibited by applicable laws, then you aren’t authorized to use the Services. We cannot and will not be responsible for your using the Services or Products in a way that breaks the law. Violation of the above Terms may result in your termination to access our Services.
You will not share your account or password with anyone, and you must protect the security of your account, password, and any other access tools or credentials. You are responsible for any activity associated with your account.
The materials displayed, performed, or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, video, API data, illustrations and so forth (collectively, the " Content") are protected by copyright and/or other intellectual property laws. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
WHAT ABOUT MY PRIVACY?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at [email protected].
WILL CLOUDNINE WEATHER EVER CHANGE THE SERVICES?
We’re always trying to improve our Products and Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical.
WILL THESE TERMS EVER CHANGE?
We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time by posting modified Terms on our website(s) and mobile applications and changing the "Last Updated" date below so you know when the new terms took effect. When changes to the Terms are made we may also place a notice on our site located at https://opensnow.com, send you an email, and/or notify you by other means available to us. You agree to review these Terms from time to time so that you are aware of any changes.
If you don’t agree with an updated version of the Terms, you are free to reject them, however, that means you will no longer be able to use the Services. Your use of the Services after a change to the Terms is effective indicates your acceptance of the updated Terms.
ARE THERE RESTRICTIONS IN HOW I CAN USE THE SERVICES
You represent, warrant, and agree that you will not provide or contribute anything, including any Content, to the Services, or otherwise use or interact with the Services, in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else or any business, including Cloudnine Weather;
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Cloudnine Weather;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- jeopardizes the security of your account or anyone else’s(such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- "crawls," "scrapes," or "spiders" any page, data, or portion of, or relating to the Services or Content (through use of manual or automated means);
- allows unauthorized API access;
- copies or stores any portion of the Content; or,
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Products or Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
WHAT ARE MY RIGHTS IN THE SERVICES?
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Cloudnine Weather owns the Services.
You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this Section still apply.
You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content, or (ii) in a way that violates including Cloudnine Weather’s rights.
WHAT ABOUT ANYTHING I CONTRIBUTE TO THE SERVICES – DO I HAVE TO GRANT ANY LICENSES TO CLOUDNINE WEATHER OR TO OTHER USERS?
To the extent available, certain features of the Services may allow you to share information with others, including through your social networks or other third-party accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a "download" or "share" button on or near the Content. If you share information from the Services with others through your third-party accounts, such as your social networks, you authorize Cloudnine Weather to share that information with the applicable third-party account provider. Please review the policies of any third-party account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request. Failure to do so may result in the termination of Services to you.
WHAT IF I SEE SOMETHING ON THE SERVICES THAT INFRINGES MY COPYRIGHT?
In accordance with the Digital Millennium Copyright Act, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our users, advertisers, or content providers, and (2) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement to [email protected] with a subject line Receive Notification of Claimed Infringement , containing the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in subpart 3 is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
- terminate such content provider’s access to the Services if he or she is a repeat offender.
Procedure to Supply a Counter-Notice. If the content provider believes that the material that was removed(or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice with the following information:
- A physical or electronic signature of the content provider;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, we may, in our discretion, send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
WHO IS RESPONSIBLE FOR WHAT I SEE AND DO ON THE SERVICES?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk. We are not liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We ca not guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
DO THE SERVICES COST ANYTHING?
Cloudnine Weather offers free Services and paid Services.
Our free Services include:
- Email Storm Updates
- Daily Snow Summaries
- Favorite Locations List
- Limited Forecast Data
The content in our free Services are subject to change at any time.
Our paid Services include:
All-Access Subscription: In addition to the free features listed above, you may receive the following additional features, depending on Cloudnine Weather’s current offerings (" All-Access Subscription"):
- Full Daily Snow Forecast
- 10-Day Snow Forecasts
- 5-Day Hourly Forecasts
- High-Resolution Maps
- Custom Powder Alerts
- Favorite & Offline Trail Maps
- Favorite & Timelapse Cams
- Snowpack Graphs
- Historical Snow Reports
- Estimated Trail Conditions
- Offline Maps
The features in our paid Services may be subject to change with notice to you.
Payment & Billing
- Recurring Billing. By choosing an All-Access Subscription, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE(RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. YOU MAY TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, THROUGH THE ACCOUNT SETTINGS.
- Auto-Renewal for All-Access Subscriptions. Unless you opt out of auto-renewal, any All-Access Subscription(s) you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or cancel your All-Access Subscription(s) at any time, go to account settings. If you terminate an All-Access Subscription, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, YOU MUST CANCEL THE APPLICABLE SUBSCRIPTION THROUGH YOUR ACCOUNT SETTINGS OR TERMINATE YOUR CLOUDNINE WEATHER ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, CLOUDNINE WEATHER WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
- Reaffirmation of Authorization. Your non-termination or continued use of an All-Access Subscription reaffirms that we are authorized to charge your Payment Method for the All-Access Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the All-Access Subscription or depending on the Services used.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges, including during or at the end of each billing cycle. If you were provided a discount when you initially signed up for an All-Access Subscription, such discount will not apply to subsequent subscriptions. Your account will be automatically renewed at the full subscription price unless you cancel your subscription prior to the end of your current subscription period.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR EMAIL OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN "ACCOUNT SETTINGS".
- Free Trials and Other Promotions. New subscribers that opt-in to the free trial receive the full All-Access experience, with no credit card required. If you choose not to purchase All-Access after the free trial is over, you will be automatically downgraded to a free account and not charged.
WHAT ABOUT MOBILE APPLICATIONS AND IN-APP PURCHASES?
You acknowledge and agree that the availability of our mobile application is dependent on the third-party stores from which you download the application, e.g., the App Store from Apple or the Google Play store for Android (each an "App Store"). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including payment provisions directly through that store, and managing and canceling subscriptions and auto-renewals directly through such platform, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions.
Through our mobile applications, you may purchase (" In-App Purchase") certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, which can be found at Apple and Google Play . Cloudnine Weather is not a party to any In-App Purchase.
CLOUDNINE WEATHER APPS VIA THE APPLE APP STORE – SHOULD I KNOW ANYTHING ABOUT THAT?
These Terms apply to your use of all the Services, including our iOS applications (the " Application") available via the Apple, Inc. (" Apple") App Store, but the following additional terms also apply to the Application:
- Both you and Cloudnine Weather acknowledge that the Terms are concluded between you and Cloudnine Weather only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Cloudnine Weather, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Cloudnine Weather, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Cloudnine Weather acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Cloudnine Weather acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
WHAT IF I WANT TO STOP USING THE SERVICES?
Cloudnine Weather may, at its discretion, terminate or suspend access to your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Cloudnine Weather has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Before you terminate your account, remember that account termination may result in destruction of any Content associated with your account.
If you have deleted your account by mistake, contact us immediately at [email protected] – we will try to help, but unfortunately, we can’t promise that we will recover or restore all prior account information.
Upon termination, all of the following will survive: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation, the arbitration agreement.
WHAT ELSE DO I NEED TO KNOW?
Warranty Disclaimer. Except as explicitly set forth in the previous paragraph, Cloudnine Weather and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Cloudnine Weather and all such parties together, the "Cloudnine Weather Parties") make no representations or warranties concerning any products or the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Cloudnine Weather Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Cloudnine Weather Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Except as explicitly set forth in the previous paragraph, Products and services purchased or offered(whether or not following such recommendations and suggestions) through the Services are provided "AS-IS" and without any warranty of any kind from the Cloudnine Weather Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY CLOUDNINE WEATHER (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CLOUDNINE WEATHER PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER/MOBILE PHONE FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO CLOUDNINE WEATHER IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and defend the Cloudnine Weather Parties from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms or any laws relating to intellectual property, privacy, or infringement. In the event of such a claim, suit, or action (" Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account, provided that, failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Cloudnine Weather’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Colorado, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Cloudnine Weather and limits the manner in which you can seek relief from Cloudnine Weather. Both you and Cloudnine Weather acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Cloudnine Weather’s officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Boulder County, Colorado. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the "Rules") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Attorney Fees. Cloudnine Weather will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous or rules in our favor.
(c) Small Claims Court; Infringement. Either you or Cloudnine Weather may assert claims, if they qualify, in small claims court in Boulder County, Colorado. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND CLOUDNINE WEATHER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Cloudnine Weather are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Cloudnine Weather over whether to vacate or enforce an arbitration award, YOU AND CLOUDNINE WEATHER WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Cloudnine Weather is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 637B S Broadway St #131, Boulder, CO 80305, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Cloudnine Weather to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Cloudnine Weather agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Boulder County, Colorado, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Cloudnine Weather.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Cloudnine Weather may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Cloudnine Weather agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Cloudnine Weather and that these Terms supersede and cancel all previous written agreements, communications, and other understandings relating to the subject matter of these Terms (except with respect to any additional waiver(s) (personal liability or otherwise) that you may execute. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Cloudnine Weather, and you do not have any authority of any kind to bind Cloudnine Weather in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Cloudnine Weather agree there are no third-party beneficiaries intended under these Terms.
Copyright © 2022 OpenSummit and Copyright © 2022 OpenSnow. All rights reserved. A Service of Cloudnine Weather LLC. All trademarks, logos and service marks (collectively between both OpenSummit and OpenSnow, the "Marks") displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
If you have any questions, comments, suggestions, or concerns regarding these Terms or the Services, please contact us at:
637B S Broadway Street #131
Boulder, Colorado 80305, USA