GENERAL SERVICE AGREEMENT
This Agreement is made by and between BAMWX LLC (“BAMWX”), an Indiana limited liability company, and any individual who subscribes to any of BAMWX’s products and does not have a Weather Consulting Agreement signed with BAMWX (“Client”). By subscribing to BAMWX, Client agrees to the following:
- Scope of Services. Client acknowledges and agrees that BAMWX will provide Client with the collective functionality and features as offered through the Website (the “Services”). Client’s subscription level will determine what features are made available to Client.
- Term. The term of this Agreement shall begin upon Client’s initial payment of access to Services and shall continue through the duration of Services, terminating upon Client’s subscription’s expiration date once written request has been received by BAMWX from Client notifying of their intention to terminate Services, as defined below.
- Compensation. By purchasing Services from BAMWX, Client agrees to both the pricing and frequency of payment that comes with Client’s selected subscription. Charges will commence on the date of Client’s initial access to Services provided by BAMWX, and Client’s account will continue to be paid by automatic withdrawal at the payment frequency (monthly or yearly) as determined by the subscription level selected by Client.
- Payment Terms. In the instance an invoice is created for Client, all payments are due within fourteen (14) days of the original invoice date. Should a thirty (30) day net be required by Client, it must be communicated to BAMWX in writing, or Client will be subject to standard late fee penalties. A late fee of 10% will be automatically applied to the total outstanding balance should payment not be received within seven (7) days of the payment due date. In the event a Client’s account is past due, BAMWX reserves the right to turn the account of the Client and/or any Member associated with the Client from active (Client/Member has access to all features on its subscription) to inactive (Client/Member loses access to all features on its subscription). Once payment in full is received by BAMWX, BAMWX shall restore all inactive Client/Member accounts to active accounts. If Client elects to pay by check, the payment will be subject to a 3% processing fee. This 3% fee will be applied to the total amount due and will be reflected on the invoice sent to Client. Other acceptable forms of payment reflected on the invoice will not be subject to processing fees. Any accounts set up to be paid by automatic withdrawal shall continue until Client has cancelled such automatic withdrawal or provided written notice to BAMWX of a change in the method of payment.
- Account Adjustments. Should Client at any time inform BAMWX that it wishes to remove features from its current subscription (including but not limited to, sub-users or Members, locations, pavement data, subscription level, etc.), Client shall forfeit the original pricing of its entire subscription. After the removal of the requested features, remaining features on the subscription will be subject to current BAMWX pricing of those products. Any requests to remove features by Client during the Term will not result in a refund being issued by BAMWX for amounts already paid. Should Client inform BAMWX that it wants to add features to its subscription, Client will keep its subscription pricing for the original Services. Features that are added will be subject to the current BAMWX pricing of those features. BAMWX will invoice Client for the additional features and add the additional features to Client’s subscription upon receipt of the invoiced amount. Should Client agree to payment of additional features via automatic withdrawal, BAMWX will initiate automatic withdrawal and add the additional features to Client’s subscription. Any renewals of Client’s subscription shall include the additional features.
- Termination & Cancellation, Renewal, and No Refunds.
- Termination & Cancellation. Client shall terminate this Agreement by providing notice, in writing, no less than five (5) days prior to the renewal date of their subscription. BAMWX will send electronic mail notice fifteen (15) days in advance of renewal date. All notices shall be provided as set forth below. Client is solely responsible for maintaining the notice address provided below and updating BAMWX in the event of any changes to the notice address to ensure receipt of the renewal notice. BAMWX is not responsible for Client not receiving electronic mail notice due to, but not limited to, automated email failure, Client electronic mail address blocking electronic mail sent by BAMWX, notice going to “spam” folder,….etc. Upon BAMWX’s receipt of written notice of termination, Client shall continue to have access to the Services until the end of the Term, after which Client and Members’ accounts will be discontinued. At the end of the Term, Client agrees to delete any electronically stored copies of BAMWX’s products, or related materials from any computer or system within the control of Client and/or its Members.
- Renewal. In the event Client does not provide written termination notice within the time provided herein, Client’s account will be automatically renewed for an additional term of their subscription.
- Review. BAMWX may, upon written request from the Client, conduct a review session with Client to assess value, usage, and understanding of the platform and to address and calibrate the Services to Client’s needs. Any such review sessions shall occur on an as needed basis, at a time and frequency to be agreed upon by the parties.
- No Refunds. The payment of fees is final, and no refunds will be issued in the event Client attempts to terminate or cancel their account within five (5) days prior to the renewal date of their subscription, or once Client’s renewal payment has been processed.
- On Call Feature. The On Call Feature refers to Client’s or its Members’ ability to contact BAMWX with questions relating to, but not limited to, forecasts, account assistance, specific requests, or other help. BAMWX reserves the right to limit the number of times that Client (whether a Member within Client’s account, or the Client’s account as a whole) can access the On Call Feature should the Client’s current usage be deemed excessive and/or unnecessary, as determined in the sole and absolute discretion of BAMWX. Upon making such a determination, BAMWX shall communicate any such limitations to Client and/or its Member. If Client or its Member(s) do not comply with the limitations communicated by BAMWX, BAMWX reserves the right to turn off access to the On Call Feature for the offending Client and/or Member(s). Should Client desire to access the On Call Feature at the usage rate previously deemed excessive and/or unnecessary by BAMWX, Client will be subject to an annual charge for an Unlimited On Call Feature option, at a minimum rate of $2,000 per offending Member per year. BAMWX will provide Client with written notice of the total charge to activate the Unlimited On Call Feature for Client’s account (the “Unlimited Access Charge”) but will not automatically charge the Client the Unlimited Access Charge. If Client accepts, BAMWX will return Client’s full access to the On Call Feature upon payment of the Unlimited Access Charge. If Client declines or fails to pay the Unlimited Access Charge, BAMWX reserves the right to keep Client’s access to the On Call Feature turned off or to otherwise limit Client’s access to the On Call Feature.
- Release and Indemnification. Client acknowledges that weather forecasting is an imprecise science and that weather conditions can change in unpredictable ways with little, if any, advance notice. Nothing in this Agreement nor in the information provided by BAMWX as part of the Services will be construed as a warranty, promise, or guarantee of the accuracy of any forecast. Client further acknowledges that the Services are not designed or intended for use in hazardous environments requiring fail-safe performance, in which the inaccuracy of the information provided could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). BAMWX expressly disclaims any and all such warranties, promises, or guarantees with regards to any express or implied warranty of fitness for High Risk Activities. Client expressly acknowledges that although BAMWX will provide professional recommendations regarding weather conditions, Client retains sole liability for all decisions made in reliance on and use of said information. Client waives and releases any claims Client might raise against BAMWX with regards to the provision of Services hereunder or Client’s reliance on the information provided by BAMWX, except in the case of gross negligence or willful misconduct by BAMWX in the provision of Services. Client agrees to defend, indemnify, and hold harmless BAMWX from and against any and all reasonable costs, expenses, and liability (including attorney’s fees) which may in any way result from claims raised by third parties against BAMWX pertaining to Client’s reliance on or use of the Services. Moreover, and to the maximum extent permitted by law, in no event shall BAMWX be liable for any indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with any dealings or agreements between Client and a third party, the use of the Services, with the delay or inability to use the Services, the cost of procurement of substitute Services, or for any information, software functionality, and materials available through the Services, whether based in contract, tort, strict liability, or otherwise, and even if BAMWX has been advised of the possibility.
- Limitation of Liability. BAMWX shall not be liable for any damages or penalties for delay in delivery or use of any Service based on any events or conditions, including, but not limited to: acts of God; actions or inactions of any governmental entity (foreign or domestic) or its agencies and departments, the National Weather Service, or the National Oceanic and Atmospheric Administration; suspension, interruption, or unavailability of data communicated from any governmental or private sources; computer or communication malfunction or failure of electronic or mechanical equipment; operator error; labor issues; or delay by BAMWX’s providers.
- Notice. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if delivered or mailed, first-class postage prepaid, or sent by electronic mail to the parties at the addresses below or to any other address that the party shall designate in writing.
- Assignment. Client may not assign its rights and obligations hereunder without the prior written consent of all the other parties. BAMWX may assign this Agreement upon written notice to Client.
- Attorneys’ Fees. BAMWX shall be entitled to recover costs and fees, including but not limited to reasonable attorneys’ fees and costs incurred by BAMWX in seeking enforcement of this Agreement.
- Severability. In the event that any court or other tribunal of competent jurisdiction determines that one or more of the provisions of this Agreement are illegal, invalid, or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement shall otherwise remain in full force and effect.
- Waiver. No waiver of any of the provisions of this Agreement shall operate as or be construed to be a waiver of any subsequent breach of any provision of this Agreement nor be deemed to be or shall constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
- Governing Law and Venue. This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of Indiana. The parties hereto: (a) irrevocably consent to the exclusive jurisdiction and venue of the courts of the State of Indiana, Johnson County, and the United States District Court for the Southern District of the State of Indiana; and (b) irrevocably waive any and all objections to such consents.
BAMWX BAMWX LLC
P.O. Box 454
Bargersville, IN 46106