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HomeMy Public PortalAboutWeatherFlow 20090212SITE USE AGREEMENT (SAMPLE) This Site Use Agreement (the “Agreement”) is entered into as of DATE January 21February 17, 20089 by and between Seaside Farm HOST NAME City of Tybee Island (“Host”) and WeatherFlow, Inc., a California based corporation (“WeatherFlow”). WHEREAS, WeatherFlow desires to install a weather station consisting of mounting hardware, instruments, electronics package, and solar panel ( the “Weather Station” as further described in Exhibit B) on a concrete pole (the “Pole” as shown in Exhibit C) on property owned by Host (the “The Property” as described in Exhibit A). NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: GRANT OF LICENSE TO INSTALL WEATHER STATION Subject to the requirements, terms, and conditions of this Agreement, WeatherFlow officers, agents, employees, and subcontractors (collectively, the Installers) are hereby granted a license to access The Property at such times as they deem appropriate in order to furnish and install, maintain, test, repair, replace and do work necessary for the complete installation and maintenance of the Weather Station on The Property. Installers shall be given access to The Property for as such times as they deem appropriate with 24 hours notice to Host. TERM The term of this Agreement shall commence as of the date set forth above and shall continue for a period of 4 years, to be automatically renewed for an additional 4 years, unless terminated by Host or WeatherFlow. Either party may, in its discretion, terminate this Agreement on the fourth anniversary of effective the day of this agreement by giving the other party written notice of such termination at least thirty (30) days prior to the day of execution for that year ACCESS CONSIDERATION; DATA ACCESS WeatherFlow hereby agrees to provide Host with access to WeatherFlow data using WeatherFlow’s web based applicationsand the ability to publish WeatherFlow data on Host’s website using existing WeatherFlow tools for such publication. Host acknowledges and agrees that data provided by WeatherFlow to Host pursuant to this Agreement shall remain the sole and exclusive property of WeatherFlow and may not be republished or redistributed by Host in any other way without the prior written consent of WeatherFlow. Under no circumstances may the WeatherFlow data be used or disclosed, either directly, indirectly, for the purpose of settling capital markets transactions including parametric insurance. The restriction on the republication or redistribution of WeatherFlow data shall not apply in cases of emergency (as determined by Host in its reasonable discretion), in which case Host may republish or redistribute WeatherFlow data, in raw form or otherwise, to others as it deems reasonably appropriate under the circumstances. In all cases of such republication or redistribution of WeatherFlow data, Host will promptly notify WeatherFlow of the circumstances of such republication or redistribution. INSURANCE WeatherFlow shall keep in force at its own expense, for the duration of this Agreement, insurance coverage not less than: Workers Compensation and Employers Liability: $500,000 each accident Commercial General Liability, including coverage for premises and operations: General Aggregate $25,000,000 Each Occurrence Limit $2,000,000 Personal Injury $2,000,000 Professional Liability (Errors & Omissions): $2,000,000 WeatherFlow shall provide Host with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of all such insurance policies as soon as practicable after execution of this Agreement. INDEMNIFICATION WeatherFlow shall pay and be exclusively responsible for any and all obligations for labor and materials for which it has contracted, for its rental of any appliance or equipment, and for any expense it has incurred in connection with the performance of its obligations under this Agreement. WeatherFlow agrees to use and occupy the Property at its own risk, and Host shall bear no responsibility for any loss or damage to fixtures or other personal property of WeatherFlow, except for such loss or damage as is caused by Host’s negligence, willful act or other misconduct. WeatherFlow shall indemnify Host from any liability for injury, loss, accident, or actual damage to any person or property, and from any claims, actions, proceedings and expenses and costs in connection therewith (including, without limitation reasonable counsel fees, court costs and any costs of expense of litigation) (i) arising from (a) the omission, fault, willful act, negligence or other misconduct of WeatherFlow, (b) any use made by WeatherFlow or thing done by WeatherFlow at the Property not due to the omission, fault, willful act, negligence or other misconduct of Host, or (ii) resulting from the failure of WeatherFlow to perform and discharge its covenants and obligations under this Agreement. POLE INSTALLATION WeatherFlow agrees to install the Pole on Host property at no cost to Host. Once installed the Pole will be owned by Host and therefore for the purposes of the Agreement will be considered part of the Property. Host agrees not to alter Pole, or in any way disrupt its use as the mount for the Weather Station. MODIFICATION, ASSIGNMENT Except as otherwise provided herein, this Agreement may be amended or modified only by writing signed by both parties. Except as otherwise expressly provided herein, the provisions of this Agreement hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns. ENTIRE AGREEMENT This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof and no party shall be liable or bound to the other party in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement. SEVERABILITY In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. LEGAL EFFECT The rights granted to WeatherFlow under this Agreement shall not constitute an easement, lease, tenancy at will, or other property right, but shall constitute a license to enter the Property and install and maintain the Weather Station. NOTICES Any and all notices required or permitted to be given either party hereto shall be sufficient if sent by registered or certified mail, return receipt request to: In the case of Host: HOST NAME Attn: CONTACT ADDRESS PHONE FAX Seaside Farm, IncCity of Tybee Island Attn: MackTodd Smith 403 Butler Ave Tybee Island, GA 31328 (912) 786-4573 1336 Seaside Rd. Saint Helena Island, SC 29920 (843) 838-3636 In the case of WeatherFlow: WeatherFlow, Inc. Attn: Lori Blomquist 108 Whispering Pines, Suite 245 Scotts Valley, CA 95066 (831) 438-9742 or to such other address as either party may specify to the other by notice as provided herein. Notices as provided for herein shall be complete upon receipt. COUNTERPARTS This Agreement may be executed in any number of counterparts, and delivered by electronic or facsimile transmission, each of which shall be an original or shall be deemed an original, but all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph hereof. WEATHERFLOW INC. By: ___________________ Name: Matt Corey Title: Chief Operational Meteorologist HOST NAME SEASIDE FARMS, INCCITY OF TYBEE ISLAND By: ______________________ Name: Title: Exhibit “A” HOST NAME Pump Station Location: 32.0193 –80.9793 32.34019 -80.58717 LAT, LON Aerial image / map Exhibit “B” Weather Station is expressly designed to withstand hurricane force winds. It is small and completely self-contained utilizing anemometer rated for 224mph winds and low profile hardened case for data logger and communications device. There are no cables from the station to ground, and therefore no grounding issues: power is supplied by a small solar panel (16.5” x 11”, weight 1.8lbs). Communication from the site to a central repository is accomplished through cell transmission. The station measures wind speed, wind direction, air temperature and barometric pressure. The instruments include an R.M. Young anemometer-vane (pictured below), mounted on a stainless steel boom installed on a short mast affixed to Pole. The anemometer weighs 2lbs, and connects to the data logger along with an air temperature sensor and solar panel. The data logger is 11”x12”x8” and weighs about 25 lbs. Exhibit “C”