Tomorrow.io Terms of Use

Last updated: 28 March 2022

These terms of use (“Terms”) between The Tomorrow Companies Inc., a Delaware corporation (together with any designated affiliates, “we”, “us”, “our” or “Company”), and you (“you” or “your”) govern your use of Company’s proprietary weather and climate offerings for internal or commercial use (the “Solution”).

BY USING THE SOLUTION, EXECUTING AN ORDER OR PROPOSAL, CLICKING A BOX OR OTHERWISE INDICATING YOUR ACCEPTANCE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, AGREE TO, AND ARE BOUND BY THE TERMS. IF YOU ARE AN INDIVIDUAL ENTERING INTO THE TERMS ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE SO AUTHORIZED TO AND DO BIND SUCH ENTITY, IN WHICH CASE, “YOU” AND “YOUR” WILL REFER TO SUCH ENTITY, AND THAT IT IS NOT A COMPETITOR TO THE COMPANY.

1. Subscription. The Solution is licensed on a limited, nonexclusive, nonsublicensable, nontransferable basis in accordance with the terms of self-generated accounts originated on our website or a written proposal or ordering document signed by the parties and specifying the fees, term, Solution type and any restrictions (“Order”), which may identify, and is subject as applicable to, the following:
   1. SaaS. Access to the HyperCastTM dashboard consisting of a web-based interface to the Solution’s functionality and features (“Dashboard”).
   2. API. Access to and ability to download the Solution’s application programming interfaces through which certain weather-related data, documentation or code may be generated (“API”) including raw data generated therefrom (“Datafeed”).
   3. Internal or Commercial Use. The SaaS and API may be used for internal business purposes or, except in the case of evaluation, proof of concept,, integrated into your proprietary applications for commercial use. Self-generated accounts originated on our website may not be used for commercial or enterprise purposes. For commercial use, the Solution may not be distributed, shared, or offered on a standalone basis and you shall cause each user to be bound to an agreement in which the Company is named a third-party beneficiary and that is at least as protective of Company as these Terms.
   4. Professional Services and Training. Additional services shall be as described by separation documentation and for purposes of the Terms considered part of the Solution.
2. Registration and User Account.
   1. You are solely responsible for the security and use of your and your users’ login credentials. If you believe an unauthorized person has gained access, you will promptly notify us.
   2. You will cause your users to comply with the Terms and you shall be responsible for any failure thereof. If you become aware of any violation by any of your users, you will promptly notify us and terminate such user’s access.
3. Attribution and Use of Names.
   1. You agree that the API or any other portion of the Solution that incorporates and presents Datafeed shall prominently display the message “Powered by Tomorrow.io” in a legible manner near such data or any information derived from it. This message shall open a link to https://www.tomorrow.io/ when clicked or touched. The following images may at your discretion be used for this purpose.
      
      
      
      
      
      
   2. Use of Company name and logos is subject to a nonexclusive, nonsublicensable, nontransferable license, during the Term and in accordance with any applicable usage guidelines. No relationship or affiliation with, sponsorship, promotion, or endorsement by the Company shall be stated or implied.
   3. Unless you notify us otherwise in writing, we may publicly identify you as a customer of the Solution and use your name, logo, and website URL in accordance with any usage guidelines you provide.
4. Operations and Support.
   1. Except incident to evaluation or proof of concept, Company will use commercially reasonable efforts to provide technical support for the Solution and associated slow-downs, failures or malfunctions within a reasonable time during our business days and hours. Such incidents will not be considered a breach of the Terms and without limiting the generality of the foregoing, in no event will Company be responsible for such circumstances caused by your breach of the Terms. Additional support may be more fully described in an Order.
   2. You agree to cooperate with us to reproduce malfunctions, and conduct diagnostic or troubleshooting activities, as we reasonably request. We may decline to support for matters that we deem, in our sole discretion, to require unreasonable effort, or costs.
   3. You are solely and exclusively responsible: (i) for all actions you take in response to your usage of the Solution; (ii) to check for any alerts, warnings, or insights issued by the Solution and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as you deem appropriate as a result of your usage of the Solution. We are not responsible or liable for your reliance upon, or use of, the Solution, or any consequences resulting therefrom.
   4. We may subcontract or delegate the performance of our obligations or the provision of the Solution to any third party provided that we remain liable to you for the performance of our obligations hereunder.
5. Intellectual Property.
   1. The Solution is proprietary to the Company and its third-party suppliers and is licensed or otherwise made available for use, not sold, to you alone; no title is transferred.
   2. Except for such limited rights, these Terms do not grant or assign to you any license, right, title, or interest in or to the Solution or any associated intellectual property rights. As between the parties, all rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Solution or any part thereof, including computer code, graphic design, layout and the user interfaces, whether or not based on or resulting from Feedback (as defined below), are and will remain at all times owned by the Company. You will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of such right, title and interest. You will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear in any embodiment of the Solutions.
   3. The Solution may use open source or other third-party software which is subject to an applicable governing license, the terms of which are deemed to be incorporated into, and in case of conflict, supersede, the Terms. Company is not responsible for the availability or fulfilment of any such software.
   4. As between you and the Company, you retain all right, title, and interest in data, content, alert parameters or other information provided by you to the Company via the Solution or otherwise (excluding Feedback (as defined below), “Your Data”) except that you grant to the Company a nonexclusive, royalty-free, fully paid up right and license, to copy, display, distribute, modify and otherwise use Your Data, in all cases solely as necessary to provide the Solution to you. You further acknowledge that the Company may create, collect, use and distribute data and insights derived from Your Data or your access or use of the Solution, which do not identify you and cannot with reasonable means be attributed or traced back to Your Data (“Aggregated Data”).
   5. To the extent you provide any information, suggestions or feedback concerning the Solution (“Feedback”), you hereby grant to the Company a nonexclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback.
   6. Company will defend, indemnify, and hold you harmless against any third-party claim against you alleging that the Solution infringes any U.S. patent or copyright, except to the extent the claim arises from modifications or combinations with other software or interfaces not performed or provided by us. Company’s obligations are conditioned upon receiving prompt notice of, and that you cooperate in and give us sole control over, the defense or settlement of the claim. In the event we believe that any functionality may be infringing, we reserve the right to substitute non-infringing functionality or, if not commercially practicable, refund prepaid amounts for the affected Solutions. The provisions of this paragraph are your sole remedy and our sole liability in such circumstances, but do not apply to evaluation or proof-of-concept licenses.
6. Confidentiality. As used in these Terms, “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either you or the Company (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or Solutions and their functionality will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. The Company’s Confidential Information includes, without limitation, the Solution, underlying components and technology, the terms and conditions of the Terms and any information related to any of the foregoing. Your Confidential Information includes Your Data, excluding Aggregated Data derived therefrom. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Terms by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under the Terms. Receiving Party will not disclose, or permit to be disclosed, Disclosing Party’s Confidential Information directly or indirectly, to any third party without Disclosing Party’s prior written consent. Receiving Party will protect the confidentiality and value of the other party’s Confidential Information as it would its own similar information, but in no case using less than a reasonable level of care. Notwithstanding any provision of the Terms, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are contractually or by virtue of their professional standards bound to keep such Confidential Information confidential consistent with the Terms; and (ii) as required by subpoena, court order or similar legal process (in which case Receiving Party will notify Disclosing Party, provide it with the opportunity to contest such disclosure, and use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Receiving Party will promptly notify the Disclosing Party in writing if it becomes aware of any violations of these confidentiality obligations.
7. Privacy.
   1. Unless expressly stated in an Order, you will not in connection with the Solution provide, and you acknowledge and agree that the name and any contact information of your personnel involved in contracting for or implementing the Solution shall not be considered, personally identifiable information. To the extent applicable, you acknowledge and agree that we will process, handle and use personally identifiable information in accordance with our privacy policy located at https://www.tomorrow.io/legal/product-privacy-policy/ which is hereby incorporated by reference.
   2. We may delete Your Data from the Solution, upon termination of the Term. You are responsible for maintaining back-up copies of Your Data. The Solution does not provide, and is not intended to be, a data back-up Solution.
8. Fees.
   1. In consideration of the provision of the Solution, you will pay us the fees set forth in the Order.
   2. All fees are quoted and are to be paid in U.S. dollars unless expressly stated otherwise. Fees are payable by wire transfer, check or major credit cards, which methods may be modified from time to time.
   3. You must keep the billing information you provide to us accurate. You authorize the Company to automatically charge or debit the selected payment method on a recurring basis for the applicable charges during the term hereof. You will ensure that you have sufficient funds or credit (as applicable). If a payment is returned from a bank account for insufficient funds or incorrect information, the Company may reinitiate the charge.
   4. Unless otherwise set forth in the Order, the applicable subscription fees will be due and payable at the beginning of each subscription cycle. All fees are exclusive of sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority based on your use of the Solution, which will be paid by you. In the event you are required by law to deduct and/or withhold any amounts from any payments due hereunder, you shall increase the amounts to be paid to the Company so that the net amount shall equal the fees that would have been due without such deduction or withholding. In the event the Company is charged with any type of taxes on your subscription in the future, except for taxes on our income, you agree to reimburse the Company for such taxes. The Company reserves the right to increase fees at any time, although such increases will not go into effect until the next renewal of the Term.
   5. Your payment obligations are non-cancellable and all amounts paid in connection with the Solution are non-refundable regardless of use or access.
   6. Payment may be processed through relevant third-party payment processors and subject additional terms or commissions.
   7. Failure to settle any overdue fee within twenty (20) calendar days of its original due date will constitute a material breach of the Terms and, without limiting any remedies available to the Company, the Company may suspend performance of or access to the Solution and charge interest at the lesser of the rate of one-and-one-half percent (1.5%) per month or part thereof and the maximum rate permitted by applicable law. You will reimburse us for all collection costs.
9. Restrictions.
   1. You acknowledge and agree not to engage, directly or indirectly, or facilitate engagement by a third party, in the following prohibited activities:
      1. Modify, make derivative works of, disassemble, decompile or reverse engineer any part of the Solution, or otherwise attempt to discover its underlying code, structure, implementation or algorithms (subject to applicable law);
      2. Install or use the Solution in any manner that breaches applicable law, rules, or regulations, or for any purpose other than as expressly permitted under the Terms;
      3. Use the Solution to develop, or create, or permit others to develop or create, a product or service in any way similar or competitive to the Solution, as solely determined by Company;
      4. Offer any portion or all of the Solution to any third parties (except to the extent of express Company-authorized commercial use), including but not limited to reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing it or any part thereof; and except to the extent of express Company-authorized commercial use, you may also not use the Solution in any way that generates revenues either directly or indirectly for you.
      5. Use the Solution in connection with any products, services or materials that constitute, promote or are used for the purpose of dealing in libelous, defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items subject to U.S. embargo or that are otherwise illegal; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft;
      6. Breach the security of, or identify, probe or scan any security vulnerabilities in, the Solution;
      7. Access data, features, or functions not intended for you, of that are otherwise disabled or access an account you are not authorized to access;
      8. Interfere with, circumvent, manipulate, overload, impair or disrupt the operation, or the functionality of the Solution;
      9. Work around any technical limitations in the Solution;
      10. Collect or process information or data about the Company’s customers;
      11. Send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
      12. Use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Solution;
      13. Publish, distribute or disclose the results of any benchmark tests performed with respect to the Solution or otherwise use any testing results related to the Solution for your marketing purposes, or for development of competing technology;
      14. Make any representation or warranty concerning the quality, performance or other characteristics of the Solution;
      15. store or otherwise collect or copy unaltered Datafeed (except if expressly provided for in the Order, in which case you may only store the Datafeed for the duration of the Term for so long as you remain in compliance with the Terms);
      16. store or otherwise collect or copy the unaltered Datafeed, unless otherwise expressly provided for in the Order. If the Order provides for storing the Datafeed, you may only store the Datafeed for the duration of the Term of the applicable Order and conditioned upon your timely payment of applicable Fees, as provided in the Order.
   2. You represent and warrant that Your Data does not and will not violate any third-party rights or any applicable laws. You will defend, indemnify, and hold the Company harmless against any third-party claim against Company alleging that Your Data infringes violates any third-party rights or any applicable laws. Your obligations are conditioned upon receiving prompt notice of, and that Company cooperate in and give you sole control over, the defense or settlement of the claim.
   3. WE MAY EMPLOY MEASURES TO DETECT AND PREVENT MISUSE, OR FRAUDULENT OR ABUSIVE USE, OF THE SOLUTION. WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT WITHOUT PRIOR NOTICE, IF WE, IN OUR SOLE DISCRETION, BELIEVE THAT YOU HAVE ENGAGED IN SUCH USE.
10. Term and Termination.
    1. Unless earlier terminated as set forth herein, the Terms remain in effect for the initial term set forth in the Order (“Initial Term”) and except in connection with an evaluation or proof-of-concept license automatically renew for additional periods of equal duration (each, a “Renewal Term”), unless either party gives notice of non-renewal at least thirty (30) days’ prior to the end of the then-current term.
    2. Either party may terminate the Terms upon written notice to the other party:
       1. In the event of a curable breach by the other party, where the breach remains uncured for fifteen (15) days following such notice, but if non-curable, then the non-breaching party may terminate the Terms immediately upon written notice;
       2. If the terminating party is required to do so by applicable law;
       3. If the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) and proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction;
       4. Lifetime subscriptions offered online to individual consumers from time to time may also terminate upon Company’s change of control, sale of substantially all of its assets or equity, or merger, acquisition, or similar transaction; or in Company’s sole discretion beginning two (2) years after activation.
    3. Upon termination or expiration for any reason, we may terminate your account, delete Your Data, and charge you for all then-outstanding fees. You (and your users, if applicable) must cease any use of the Solution (and, if you have access to APIs, destroy and remove from all computers, hard drives, networks and storage media all copies of the APIs and so certify to the Company). Anything which by its nature in these Terms ought to survive the expiration or termination of this Terms shall survive, including but not limited to Sections 5-12.
11. Disclaimers and Limitation of Liability.
    1. THE SOLUTION IS PROVIDED “AS IS”. WE DO NOT WARRANT THAT IT WILL OPERATE UNINTERRUPTED OR ERROR FREE. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO OUTCOMES OR BENEFITS, RELIABILITY, EFFECTIVENESS, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM A PARTY’S (I) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (II) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (III) INFRINGEMENT OR MISAPPROPRIATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER YOU NOR THE COMPANY, NOR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SOLUTION OR UNDERLYING TECHNOLOGY, ANY RELIANCE UPON THE SOLUTION OR UNDERLYING TECHNOLOGY OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY; OR (B) ANY AMOUNT GREATER THAN THE TOTAL FEES PAYABLE BY YOU TO THE COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
12. Miscellaneous.
    1. Governing Law and Venue. The Terms are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its rules of conflict of laws. Apart for a claim against you for interim, equitable, or injunctive relief, which may be brought in any court of competent jurisdiction, any dispute or claim shall be submitted to the exclusive jurisdiction of the competent courts in Boston, Massachusetts and each party waives any objections to such courts on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.
    2. Notice. All notices required by this Agreement will be given in writing to the other party and delivered by email to the address on Company record and in the case of Company to [email protected]
    3. Assignment. Neither party may assign the Terms or an Order without prior written consent of the other party except in connection with a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets (excluding such a transaction between you and a competitor of Company).
    4. Relationship of the Parties. The relationship between the parties hereto is that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
    5. Complete Agreement and Severability. These Terms constitute the entire and complete agreement between you and us, and supersedes all prior oral or written understandings or representations with respect to the subject matter herein. If any provision of the Terms is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect.
    6. No Waiver. Neither party will, by lapse of time or failure to give notice be deemed to have waived any breach by the other party.
    7. Force Majeure. Neither party will be liable for any delay or failure to perform any obligations under the Terms due to any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
    8. Government Use. If you are part of an agency, department, or other entity of the U.S. government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Solutions are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Solutions and associated technology are a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the by such entitles will be governed solely by the Terms.
    9. Compliance. You will comply with all U.S. and similar laws, rules and regulations with an international reach including those addressing bribery, corrupt practices, export controls, money laundering and modern slavery. You represent and warrant that you are not located in, or a national or resident of any restricted country, and are not on any list of restricted parties promulgated by relevant government agencies.
    10. Modifications. We may without notice modify, adapt, improve, or enhance the Solution, or any of its features. We reserve the right to modify portions of these Terms (which have sometimes been referred to as “Terms of Service”) and indicate at the top of this page the date these Terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted. Your continued use of the Solution thereafter constitutes your acceptance of the new Terms.