SkyServe User Agreement
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Terms of Use

1) Web-Based Wind Data Software

This Agreement provides Customer access to a proprietary online wind data service with functionality for:

  • Data uploading, from wind data measurement devices;
  • Data archiving; of wind data
  • Data review, looking at present and historical data;
  • Data export, and downloading
  • Analytics, such as custom reporting and charting.

Vaisala will provide this functionality through http://www.skyserve.net within its server environment under the terms below (Service) and through a desktop browser that will act as the interface to the Service.

  • Customer may allow its (a) employees and contractors to access the Services in compliance with the terms of this Agreement, which access must be for the sole benefit of Customer, and (b) clients (only if acting as a service provider to them) access to the Service as part of providing wind measurement or related services to such clients (Service Provider).
  • Customer is responsible for the compliance with this Agreement by its employees, contractors and clients, as the case may be.
  • Each employee, contractor and client, as the case may be, must agree to Vaisala’s end user license agreement before using the Vaisala desktop software.

2) Use Of Services

a. Vaisala Responsibilities: Vaisala must

  1. use commercially reasonable efforts to make the Services available, except for scheduled outages, or unavailability caused by force majeure, and
  2. provide customer support for the Services

b. Customer Responsibilities: Customer

  1. is solely responsible for Customer Data,
  2. must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify Vaisala promptly of any such unauthorized access, and
  3. may use the Services only in accordance with its user guide and applicable law.
  4. Customer may not
    1. sell, resell, rent or lease the Services except as a Service Provider
    2. use the Services to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (y) interfere with or disrupt the integrity or performance of the Services, or
    3. attempt to gain unauthorized access to the Services or their related systems or networks.

3) Warranty/Service Level Agreement And Remedy

a) Vaisala Limited Warranty

Vaisala warrants to Customer,

  • that commercially reasonable efforts will be made to maintain the online availability of the Services for a minimum of availability in any given month,
  • the functionality of the Services may change but will not materially decrease during a paid term, and
  • that the customer support may change but will not materially degrade during any paid term.

b) Limited Remedy and Disclaimer

Customer’s exclusive remedy and Vaisala’s sole obligation for breach of the warranty in (a)(i) immediately above will be for Vaisala to provide a credit as provided in the chart above (if this Agreement is not renewed, then a refund), for the month in question; provided that Customer notifies Vaisala of such breach within 30 days of the end of the month in question. VAISALA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

c) Mutual Compliance with Laws Warranty

Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this Agreement.

4) Proprietary Rights

a) Reservation of Rights by Vaisala

The software, workflow processes, user interface, designs, know-how and other technologies provided by Vaisala as part of the Services are the proprietary property of Vaisala and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Vaisala. Vaisala reserves all rights unless expressly granted in this Agreement.

b) Customer Restrictions

Customer may not:

  1. Use the Services or the Licensed Documentation beyond its internal operations;
  2. Reverse engineer the Services or the Licensed Documentation;
  3. Remove or modify any proprietary marking or restrictive legends in the Service; or
  4. Access the Service to (w) build a competitive product or service, or (x) copy any feature, function or graphic of the Service for competitive purposes.

c) Customer Data

All data uploaded by Customer remains the sole property of Customer, as between Vaisala and Customer (Customer Data), subject to the other terms of this Agreement.  Customer data is stored and managed in accordance with Vaisala’s Customer Data Protection Policy. Customer grants Vaisala a non-exclusive term license to use, modify, copy and prepare derivative works of the Customer Data for purposes of Vaisala performing under this Agreement. Customer may at any time download its Customer Data from the Services. Vaisala may use Customer Data during and after this Agreement for purposes of enhancing the Services, technical support, and research.  Vaisala may internally use, and publicly disclose aggregate non-identifiable information and data for research and scientific purposes to advance knowledge of the wind-related atmospherics and helps guide wind industry action for improved project performance and optimized operating practices.  Aggregate data disclosed will be anonymized in the following ways:

  • No reference to site location other than country, region, or state
  • No reference to owner or project name
  • No site description other than terrain classification (such as flat, hilly, or forested)
  • No measurement periods other than season or duration in months.
  • Wind speed averages and frequency distributions will not be disclosed

5) Exclusion of Damages and Limitation of Liability

a) Exclusion of Certain Damages

EXCEPT FOR A VIOLATION OF VAISALA’S INTELLECTUAL PROPERTY RIGHTS OR FOR THE INDEMNITIES BELOW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES).

b) Limitation of Liability

SECOND WIND’S LIABILITY FOR ALL DAMAGES RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.

6) Term, Termination, Suspension of Service and Return of Data

a) Term

This Agreement is for the term of one year from the date of installation, and automatically renews.  The Agreement is terminable (with or without or cause): by Customer upon advance notice, and by Vaisala upon at least 5 days advance notice.

  1. Actions upon Termination
    (w) Upon any termination as provided in 8(a) above by Customer, Vaisala must refund any prepaid and unused fees covering the remainder of the Term.
    (x) Upon any termination as provided in 8(a) above by Vaisala, Customer must pay any unpaid fees covering the remainder of the Term.

b) Return of Data

Before termination of this Agreement, Customer may download its Customer Data.. The Customer Data will only be provided in Microsoft Excel (.XLS) or Common Separated Values (.CSV) file format and only includes ten-minute wind data records.

After termination, Vaisala has no obligation to maintain any of the Customer Data.

If Customer is acting as a Service Provider, the data of a client of Customer will be provided to that client upon the instruction of Customer and that client (unless based on Vaisala’s belief applicable law requires otherwise).

c) Suspension of Service for Violations of Law

Second Wind may immediately suspend the Services and remove applicable Customer Data if it in good faith believes that, as part of using the Services, Customer may have violated a law. Vaisala may try to contact Customer in advance, but it is not required to do so.

7) Indemnity

a) By Vaisala

If a third-party claims that Customer’s use of the Services (other than related to the Customer Data) infringes that party's patent, copyright or other proprietary right, Vaisala will defend Customer against that claim at Vaisala’s expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by Second Wind, provided that Customer:

  1. promptly notifies Vaisala in writing of the claim; and
  2. allows Vaisala to control, and cooperates with Vaisala in, the defense and any related settlement.

If such a claim is made, Vaisala could continue to enable Customer to use the Services or to modify it. If Vaisala determines that these alternatives are not reasonably available, Vaisala may terminate the Services (without any liability to Customer) upon notice to Customer and with the return of any prepaid and unused fees.

b) By Customer

Customer must indemnify, defend, and hold harmless Vaisala against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:

  1. Customer’s breach of any representation, warranty, obligation, covenant or agreement in this Agreement,
  2. any unauthorized use, access or distribution of the Services by Customer,
  3. violation of any individual’s privacy rights related to information submitted under Customer’s account, or
  4. fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account.

General Terms and Conditions

1) Mutual Confidentiality

a) Definition of Confidential Information

Confidential Information means all confidential information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Vaisala’s Confidential Information includes without limitation the Services.

b) Protection of Confidential Information

The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and clients (as the case may be) who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c) Exclusions

Confidential Information excludes information that:

  • is or becomes generally known to the public without breach of any obligation owed to Discloser,
  • was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser,
  • is received from a third party without breach of any obligation owed to Discloser, or
  • was independently developed by the Recipient without use or access to the Confidential Information.

2) Payment Terms

SkyServe/Support Fee - Due in Advance:

Second Wind would bill initially prior to shipment, and then one month in advance of the expiration of the service contract term.  SkyServe access will be disabled for overdue accounts. 

Remote Commissioning, Non-standard Installation Services - Due in Arrears:
Second Wind would bill you around the 1st of the month for the service provided in the prior month)

3) Governing Law

This Agreement is governed by the State of Massachusetts, substantive laws, without regard to conflict of laws principles. Any dispute arising out of or related to this Agreement must be brought in the state and federal courts for Middlesex County, Massachusetts. Customer consents to the personal jurisdiction of such courts and waives any claim that it is an inconvenient forum. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.

4) Miscellaneous Other Terms

a) No Assignment

Neither party may assign or transfer this Agreement or an order to a third party, except that this Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.

b) Independent Contractors

The parties are independent contractors with respect to each other.

c) Enforceability

If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.

d) No Additional Terms

Vaisala rejects additional or conflicting terms of a form-purchasing document.

e) Order of Precedence

If there is an inconsistency between this Agreement and an order, the order prevails.

f) Survival of Terms

Any terms that by their nature survive termination or expiration of this Agreement, will survive.

g) Customer Name

Vaisala may use Customer's name and logo in customer lists and related promotional materials describing Customer as a customer of Vaisala, which use must be in accordance with Customer’s trademark guidelines and policies.

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