Tomorrow.io Subscription Terms

Last updated: 19 October 2023

These subscription terms (“Terms”) between The Tomorrow Companies Inc., a Delaware corporation with principal place of business at 9 Channel Center Street, Seventh Floor, Boston, MA 02210 (together with any designated affiliates, “Company”), and the individual or entity described below (“Subscriber”) govern Subscriber’s use of Company’s proprietary weather and climate insights and associated data and offerings for any authorized internal or commercial purpose (the “Solution”).

BY USING THE SOLUTION, EXECUTING AN ORDER OR PROPOSAL, CLICKING A BOX OR OTHERWISE INDICATING ACCEPTANCE, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT IT HAS READ, AGREES TO, AND IS BOUND BY, THE TERMS. ANY INDIVIDUAL ENTERING INTO THE TERMS ON BEHALF OF A LEGAL ENTITY HEREBY REPRESENTS AND WARRANTS THAT IT IS SO AUTHORIZED TO, AND DOES, BIND SUCH ENTITY, IN WHICH CASE, SUBSCRIBER AS USED HEREIN WILL REFER TO SUCH ENTITY. SUBSCRIBER REPRESENTS AND WARRANTS THAT (A) ALL REGISTRATION AND OTHER REQUIRED INFORMATION PROVIDED IS TRUE AND ACCURATE IN ALL RESPECTS; AND (B) NEITHER IT NOR PERSONNEL (AS DEFINED BELOW) IS (I) LOCATED IN OR A NATIONAL OR RESIDENT OF ANY U.S.-SANCTIONED COUNTRY, (II) IDENTIFIED ON A RELEVANT GOVERNMENT AGENCY PROMULGATED SANCTIONS, EMBARGO, SPECIALLY-DESIGNATED NATIONALS OR SIMILAR LIST, OR (III) A COMPETITOR TO THE COMPANY AND WILL NOT DIRECTLY OR INDIRECTLY SHARE ACCESS WITH A COMPETITOR.

Subscription. The Solution is licensed on a limited, nonexclusive, non sublicensable, non transferable basis in accordance with the terms of self-generated accounts originated on Company’s 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 Tomorrow.io Weather Intelligence Platform 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 (“API”) through which raw data (“Datafeed”) and weather-related insights may be generated.
3. Data Portal (or DaaS). Separate access to Datafeed.
4. Professional Services and Training. Additional services shall be as described by separate documentation and considered part of the Solution.
5. Permitted Use. Paid Solution offerings may be used for Subscriber’s internal business purposes or, as specified in an Order, integrated into Subscriber proprietary commercial applications. Commercial use is strictly prohibited in the case of evaluation, proof of concept, or in connection with self-generated accounts originated on Company’s website, and evaluation of DaaS is limited to internal evaluation (non-business) purposes. The Solution may not be distributed, shared, or offered on a standalone basis and commercial applications require an agreement in which the Company is named a third-party beneficiary and that is at least as protective of Company as these Terms.
Registration and Subscriber Account.
1. Subscriber is solely responsible for the security and use of login credentials and compliance with the Terms on the part of its employees, directors, officers, agents, shareholders, advisors, and other users to whom access has been granted, and anyone acting on their behalf (“Personnel”).
2. If Subscriber becomes aware of any violation thereof, Subscriber will promptly notify Company and terminate such access.
Attribution and Use of Names.
1. Subscriber agrees that any 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.
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 notified otherwise in writing, Company may publicly identify Subscriber as a user of the Solution including its name, logo, and website URL in accordance with any Subscriber usage guidelines.
Operations and Support.
1. Except incident to evaluation, proof of concept, or arising out of Subscriber breach, Company will use commercially reasonable efforts to provide technical support for the Solution and associated slow-downs or failures within a reasonable time during Company business hours. Such incidents will not be considered a breach of the Terms. Additional support offerings may be more fully described in an Order.
2. Subscriber agrees to cooperate with Company to reproduce malfunctions and conduct diagnostics. Company may decline to provide support for matters it deems to require unreasonable effort or costs.
3. Subscriber is solely responsible (i) for all actions taken incident to Solution usage; and (ii) to check for any alerts, warnings, or insights issued by the Solution. Company is not responsible or liable for Subscriber reliance upon, or use of, the Solution, or any consequences resulting therefrom.
4. Company may subcontract or delegate the performance of its obligations or the provision of the Solution to any third party, provided that Company remains liable for its obligations hereunder.
Intellectual Property.
1. All right, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property and associated rights and goodwill, in and to the Solution or any code, data, design, layout, interface or other component thereof, whether or not based on Feedback (as defined below), are and will remain at all times with the Company or its third-party suppliers. Subscriber will not do, or cause or allowed to be done, any acts contesting or in any way impairing or tending to impair same. The Solution is proprietary and is licensed for the limited use rights conveyed herein; no sale, grant, or assignment is made.
2. Subscriber will not delete or alter copyright, trademark, or other proprietary rights notices or markings that appear in any embodiment of the Solution.
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 Subscriber and the Company, Subscriber retains all right, title, and interest in data, content, alert parameters or other information provided by Subscriber to the Company via the Solution or otherwise (excluding Feedback, “Subscriber Data”) except that Subscriber grants to the Company a nonexclusive, royalty-free, fully paid up right and license, to copy, display, distribute, modify and otherwise use Subscriber Data, in all cases solely as necessary to provide the Solution hereunder. Subscriber further acknowledges that the Company may create, collect, use and distribute data and insights derived from Subscriber Data or Subscriber access or use of the Solution, which do not identify Subscriber and cannot with reasonable means be attributed or traced back to Subscriber Data (“Aggregated Data”).
5. To the extent Subscriber provides any information, suggestions or feedback concerning the Solution (“Feedback”), Subscriber hereby grants 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 Subscriber cooperate in and give Company sole control over, the defense or settlement of the claim. In the event Company believes that any functionality may be infringing, Company reserves 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 Subscriber’s sole remedy and Company’s sole liability in such circumstances, but do not apply to evaluation or proof-of-concept licenses.
Confidentiality. As used in these Terms, “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either Subscriber 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 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. Subscriber Confidential Information includes Subscriber Data (excluding Aggregated Data). 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 with respect thereto; (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). Receiving Party will promptly notify the Disclosing Party in writing if it becomes aware of any violations of these confidentiality obligations.
Privacy.
1. Unless expressly stated in an Order, Subscriber will not in connection with the Solution provide, and Subscriber acknowledges and agrees that the name and any contact information of Subscriber personnel involved in contracting for or implementing the Solution shall not be considered, personally identifiable information (or information similarly designated). To the extent applicable, Subscriber acknowledges and agrees that Company will process, handle and use personally identifiable information in accordance with Company’s privacy policy located at https://www.tomorrow.io/legal/product-privacy-policy/ which is hereby incorporated by reference.
2. Company may delete Subscriber Data from the Solution upon termination of the Term. Subscriber is solely responsible for maintaining back-up copies of Subscriber Data.
Fees.
1. In consideration of the provision of the Solution, Subscriber will pay Company 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 ACH, wire transfer, check or major credit cards, which methods may be modified from time to time.
3. Subscriber must keep the billing information it provides to Company accurate. Subscriber authorizes the Company to automatically charge or debit the selected payment method on a recurring basis for the applicable charges during the term hereof. Subscriber will ensure that it has sufficient funds or credit (as applicable) and charges will be reinitiated for insufficient funds or incorrect information.
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 Subscriber use of the Solution, which will be paid by Subscriber. In the event Subscriber is required by law to deduct and/or withhold any amounts from any payments due hereunder, it 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 the subscription in the future, except for taxes on its income, Subscriber agrees 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. Subscriber 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 to 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. Subscriber will reimburse Company for all collection costs.
Restrictions.
1. Subscriber acknowledges and agrees 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 and advance notice Company);
  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 or generating revenue thereform.
  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 or functions not intended for Subscriber, or that are otherwise disabled, or access an account without authorization;
  8. Interfere with, circumvent, manipulate, overload, impair or disrupt the operation or the functionality of, or work around any technical limitations in, the Solution;
  9. Collect or process information or data about the Company’s customers;
  10. Send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
  11. Use robots, crawlers and similar applications to scrape, harvest, collect or compile content or data from or through the Solution;
  12. Publish 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 commercial, competitive, or other purposes;
  13. Make any representation or warranty concerning the quality, performance or other characteristics of the Solution;
  14. store or otherwise collect or copy the unaltered Datafeed, unless otherwise expressly provided for in the Order or for permitted evaluation of DaaS, in which case Datafeed may only be stored for the duration of the Initial Term and provided that Subscriber remains in compliance with the Terms.
2. Subscriber represents and warrants that Subscriber Data does not and will not violate any third-party rights or any applicable laws and will defend, indemnify, and hold the Company harmless against any third-party claim alleging same. Subscriber obligations are conditioned upon receiving prompt notice of, and that Company cooperate in and give Subscriber sole control over, the defense or settlement of the claim.
3. COMPANY MAY EMPLOY MEASURES TO DETECT AND PREVENT MISUSE, OR FRAUDULENT OR ABUSIVE USE, OF THE SOLUTION. COMPANY MAY SUSPEND OR TERMINATE SUBSCRIBER ACCOUNT WITHOUT PRIOR NOTICE, IF COMPANY, IN ITS SOLE DISCRETION, BELIEVEs THAT SUBSCRIBER HAS ENGAGED IN SUCH USE.
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. Promotional lifetime subscriptions offered online to individual consumers 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, Company may terminate the Subscriber account, delete Subscriber Data, and charge Subscriber for all then-outstanding fees. Subscriber (and its personnel, if applicable) must cease any use of the Solution (and, if Subscriber has access to APIs, destroy and remove associated credentials and generated data from all computers, hard drives, networks and storage media 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.
Disclaimers and Limitation of Liability.
1. THE SOLUTION IS PROVIDED “AS IS”. COMPANY DOES NOT WARRANT THAT IT WILL OPERATE UNINTERRUPTED OR ERROR FREE. COMPANY DISCLAIMs ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO RESULTS OF FORECASTS OR OTHER 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 (EXCLUDING ANY PRIVACY OR DATA SECURITY OBLIGATIONS), OR (III) INFRINGEMENT OR MISAPPROPRIATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, COMPANY WILL NOT 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, RELIANCE ON, ANY USE OF, OR THE INABILITY TO USE THE SOLUTION OR UNDERLYING TECHNOLOGY, OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY; OR (B) ANY AMOUNT GREATER THAN THE TOTAL FEES PAYABLE BY SUBSCRIBER TO THE COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
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 Subscriber for interim, equitable, or injunctive relief arising from actual or threatened breach of confidentiality, license, or use restrictions, which may be brought in any court of competent jurisdiction without waiving other available rights or remedies, 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 the address first written above and [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 Subscriber and Company, supersede all prior oral or written understandings or representations with respect to the subject matter herein, and shall take precedence over and nullify any contrary or additional terms provided in an ordering document. 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 Subscriber is part of an agency, department, or other instrumentality of the U.S. government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Solution is 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. Subscriber represents, warrants and covenants that it does and will comply with all U.S. and other laws applicable to the Solution and the parties including those addressing privacy, data security, bribery, corrupt practices, money laundering, modern slavery and export control, including, without limitation, the U.S. Department of State International Traffic in Arms Regulations and the U.S. Department of Commerce Export Administration Regulations, or other laws prohibiting certain solicitation or sale including to any U.S. embargoed country or listed individual. Subscriber will not directly or indirectly, or make available to a third-party that could reasonably be suspected to, utilize any part of the Solution in connection with the development, production, handling, operation, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other military applications, and shall not directly or indirectly sell, resell, supply, export, re-export or otherwise convey or dispose of the Solution in furtherance thereof. The Company reserves the right to carry out screening and background checks and Subscriber shall provide assistance to the Company in relation thereto.
10. Modifications. Company may without notice modify or improve Solution features. Company reserves the right to modify portions of these Terms (which have sometimes been referred to as “Terms of Service” or “Terms of Use”) 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. Continued use of the Solution thereafter constitutes Subscriber acceptance of the new Terms.