1  SERVICES

1.1           Services.  Weather Services International Limited ("WSI") shall provide the Customer with the services ("Services") described in the Schedule.  All Services shall be delivered to Customer electronically via a WSI website (all such electronic deliverables hereinafter referred to as "Data") in the form and at the times set out in the Schedule.  WSI has rights to the Data.

1.2           Use of Services.  The Customer shall have the right to use, modify, and reproduce the Data as set out in the Schedule.  The Customer agrees that all Services and Data will be used exclusively by the Customer, its employees and officers solely for its own internal use.  The Customer shall have no right to sublicense, redistribute, resell or retransmit the Data to any other person (provided that if Customer is in the business of providing pre-flight weather and aeronautical information service briefings to pilots it may allow such pilots to view the exhibition of the Data and provided further that Customer may distribute the Data internally to the extent expressly provided on the Schedule).  The Customer agrees that the Data, and all data and methods used to produce the Data and the Services, shall remain the property of WSI or its licensors.  A breach of this clause would allow WSI to terminate this Agreement.

1.3           Service Improvements.  To improve the services for all customers, WSI reserves the right to make changes from time to time in the Services without notice to the Customer.  Such action shall not constitute a breach on the part of WSI.

1.4           Care and Skill.  WSI shall take reasonable care and skill in providing the Services to Customer.

2  CUSTOMER RESPONSIBILITIES AND ACKNOWLEDGEMENT

2.1           The Customer shall be responsible for acquiring any necessary equipment, software and other materials necessary to receive transmissions of the Data. 

2.2           The Customer acknowledges that the Services are wholly advisory in nature and the Customer shall be solely responsible for all business judgments and decisions made with respect to the Data.  The Customer acknowledges that WSI makes no representations regarding the accuracy or predictive value of the Data.  WSI assumes no responsibility for the accuracy of the Data and is not responsible for errors resulting from omitted, misstated or erroneous information or assumptions.  The Customer is urged to verify the Data against other sources prior to use. 

3  FEES AND PAYMENT

3.1           Fees.  Customer shall pay WSI the monthly fee and other sums listed in the Schedule.  Fees payable under this Agreement are expressed as exclusive of VAT or other similar sales tax.

3.2           Time of Payment.  Customer shall pay all WSI invoices within fifteen (15) days of the date thereof.  Time of payment of the fees is of the essence. 

3.3           Late Payments.  Customer shall pay interest on late payments at a rate of 4% above the base rate of HSBC bank on all overdue payments hereunder from the date of the invoice.  Customer agrees to indemnify WSI against any costs incurred, including reasonable legal fees, to collect amounts owed hereunder.

3.4           Taxes. In addition to all the payments required by this Agreement, Customer shall pay to WSI all taxes that are applicable to the Services or measured directly by payments made under it and are required to be collected by WSI or paid by WSI to tax authorities of any country including VAT but exclusive of taxes on WSI's net income.

4  TERM AND TERMINATION  The term shall be as indicated on the Schedule.  The Agreement shall automatically renew for additional one (1) year periods unless a party has given at least thirty (30) days written notice to the other prior to the end of the then current term.  Such termination will not prejudice WSI's rights to any amounts then due under this Agreement.

5  INTELLECTUAL PROPERTY

5.1           All design, text, graphics, program code and the selection or arrangement of them are the copyright of WSI or its licensors. All intellectual property rights (including but not limited to copyright, patents, database rights, trade marks, brand names and company names or logos), provided or used in relation to the Services are WSI's property or the property of their respective owners/licensors.

5.2           WSI will defend Customer against a claim that the Services infringes a trade secret or copyright enforceable in the United States or the United Kingdom, and WSI will pay any resulting costs, damages, and reasonable lawyer's fees finally awarded, provided that Customer promptly notifies WSI in writing of the claim, WSI has sole control of the defence and all related settlement negotiations, and Customer provides WSI with complete information concerning the claim.  WSI’s liability hereunder shall not apply to the extent that Customer has modified the Data.

5.3           WSI's obligation hereunder is conditioned on Customer's agreement that if any part of the Services become, or in WSI's opinion is likely to become, the subject of such claim, Customer will permit WSI, at its option and expense, either to procure the right for Customer to continue using the Services or to replace or modify the same (prior to loss of use by Customer) so that it becomes noninfringing while retaining equivalent functionality. If neither of the foregoing alternatives is available on terms that are reasonable in WSI's judgment, this Agreement shall terminate without further liability to either party hereto.  This clause states WSI's entire liability for infringements of intellectual property rights of any third party.

6  WARRANTY DISCLAIMER  WSI MAKES NO WARRANTY OR CONDITIONS WITH RESPECT TO THE SERVICES AND HEREBY EXCLUDES ALL EXPRESS OR IMPLIED CONDITIONS OR WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TORT, INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY TO THE EXTENT PERMISSIBLE BY LAW.  THE SERVICES ARE PROVIDED "AS IS" AND WSI ASSUMES NO RESPONSIBILITY WITH RESPECT TO THEIR USE BY THE CUSTOMER OR ITS EMPLOYEES OR CLIENTS.

7  LIMITATION OF LIABILITY

7.1          SUBJECT TO CLAUSE 7.5, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FORUM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT OR THE FORM OF THE ACTION (e.g. TORT, BREACH OF CONTRACT, OR OTHERWISE) THE CUSTOMER AGREES THAT WSI’S LIABILITY, IF ANY, TO CUSTOMER FOR ANY LOSS, DAMAGE, EXPENSE, CLAIM OR LIABILITY OF ANY KIND CAUSED DIRECTLY OR INDIRECTLY BY THE PERFORMANCE OR NON PERFORMANCE OF WSI’S OBLIGATIONS UNDER THIS AGREEMENT OR BY THE NEGLIGENT ACT OR OMISSION OF WSI, SHALL BE LIMITED IN ALL CASES TO THE AGGREGATE AMOUNT PAID BY THE CUSTOMER DURING THE PRECEDING TWELVE (12) MONTHS PRIOR TO THE BREACH, ACT OR OMISSION OCCURRING.

7.2          SUBJECT TO CLAUSE 7.5, In no event shall WSI be liable to customer for any special, indirect, incidental EXEMPLARY, PUNITIVE or consequential LOSS OR damage or any loss or damage resulting from loss of use, data, business or profits, whether in contract, tort, (including negligence) breach of statutory duty or otherwise (whether OR not such loss or damage is reasonably foreseeable).

7.3          EXCEPT FOR WILFUL MISCONDUCT ON THE PART OF WSI, CUSTOMER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND WSI FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, EXPENSES (INCLUDING LEGAL FEES) OR LIABILITIES OF WHATEVER NATURE OR KIND ASSERTED BY, SUFFERED OR INCURRED BY THIRD PARTIES ARISING OUT OF THE USE BY THE CUSTOMER OF THE SERVICES.

7.4           Subject to clause 7.5, neither WSI nor Customer shall institute any action in any forum arising out of this Agreement more than twelve (12) months after the cause of action has arisen, or in the case of non-payment, more than twelve (12) months from the date of last payment or promise to pay, except that this limitation shall not apply to any action for payment of taxes.

7.5           Nothing in this Agreement shall operate to exclude or limit WSI's liability for fraudulent misrepresentation or for death or personal injury caused by its negligence.

7.6           Whilst WSI takes every reasonable precaution and care in relation to the Services it does not warrant that use of the Services will be uninterrupted or error free and WSI does not accept any liability for computer service or system failure, access delays or interruption, Data non-delivery or mis-delivery, computer viruses or other harmful components, breaches of security or unauthorised use of the system arising from "hacking" or otherwise.

8  NON-Inducement of Employees  Customer agrees that for the term of this Agreement and for a period of one (1) year thereafter, it will not entice or induce, nor attempt to entice or induce, or hire from WSI any employee of WSI who has been engaged in the performance of Services under this Agreement, without WSI’s express written agreement.

9  FORCE MAJEURE

9.1           WSI shall have no liability to Customer for failure to perform any of its obligations hereunder or otherwise due to occurrence beyond its reasonable control, including, but not limited to, strikes, riots, wars, fire, acts of God, acts in compliance of any law or government regulation or authority, communications failures, or acts of any third party.

9.2           Customer acknowledges that WSI receives certain data included in the Data from third parties and agrees that in the event that receipt of such data by WSI is terminated for any reason, WSI reserves the right to terminate transmission of such data and related products hereunder without further liability to Customer.

10   DEFAULT  A party shall be deemed in default hereunder in the event that any of the following events occur:

i  Such party breaches any material obligation under this Agreement and such breach cannot be remedied, or, where such breach is capable of being remedied, fails to cure such breach within thirty (30) days after notice by the other party; or

ii Such party makes an arrangement or compromise for the benefit of creditors, or files a petition for winding up, or for reorganisation or rearrangement under any bankruptcy or insolvency law, or if any involuntary petition under any such laws is filed against such party; or

iii          Such party is liquidated, dissolved or otherwise goes out of business.

In addition to any other remedies the non-defaulting party may have under this Agreement, a party shall have the right to terminate this Agreement upon the default of the other party hereto.

11   MISCELLANEOUS

11.1        Notices.  All notices required under this Agreement shall be made in writing personally, by facsimile, or by certified mail, return receipt requested, is and shall be deemed to have been properly given when delivered in person, upon electronic confirmation when sent by facsimile or three days after being sent to the following addresses:

WSI:

Weather Services International Limited

22-24 Vittoria Street, Birmingham, B1 3PE, ENGLAND

Att:     Commercial Director

Customer:

Address and Contact as specified on the Schedule.

11.2        Waiver.  Failure by WSI or Customer to enforce any provision of this Agreement will not be deemed a waiver of that provision or of the right to enforce it in the future. 

11.3        Severability.  In the event any of the provisions of this Agreement are held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected, impaired or invalidated in any manner.

11.4        Assignment.  This Agreement shall not be assigned by the Customer.

11.5        Independent Contractors.  The Customer and WSI shall be independent contractors with respect to each other and this Agreement shall not create in any manner and for any purpose any other relationship between the parties whether as principal and agent, employer and employee, partners or otherwise.  Neither the Customer nor WSI is authorised to enter into any agreements for or on behalf of the other party, create any obligations, responsibilities, expressed or implied, for on behalf of the other, or bind the other party in any manner or thing whatsoever.

11.6        Trial services.  Any Trial Services are for purposes of demonstration and evaluation only and the Customer’s use is subject to the Terms and Conditions herein.

11.7         Third Party Rights.  No party who is not a party to this Agreement shall have any right to enforce it pursuant to the Contracts (Rights of Third Parties) Act 1999.

11.8        Entire Agreement.  This Agreement contains the entire understanding of the parties and supersedes all prior understandings, written or oral with respect to the subject matter hereof (including, but not limited to any terms and conditions of purchase of the Customer).  No waiver, alteration, or modification of any provision hereof shall be binding unless in writing and signed by a duly authorised representative of WSI and the Customer. 

11.9        Applicable Law.  This Agreement will be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English Courts.