Climatics Terms of Use Agreement
By accessing Climatics, the Client as outlined in their Schedule 1, agrees to be bound by these terms. If you are entering into this agreement on behalf of a company or other legal entity you represent, that you have the authority to bind such entity, its affiliates and users to these terms and conditions, in which case the term ‘Client’ shall refer to such entity, its affiliates and any of its users or any person on their behalf. If you do not have authority or if you do not agree with these terms and conditions, you must not accept this agreement and may not use this service.
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Agreement
1.1 Special Conditions
(a) This Agreement may contain Special Conditions as set out in their Schedule 1.
(b) Special Conditions operate as terms in addition to terms contained in this Agreement.
(c) Other than terms set out in Clause 14 Third Party Terms, if there is any inconsistency between any Special Condition and any other term contained in this Agreement the effect of Schedule 1 prevails over any inconsistent term to the extent of that inconsistency.
1.2 Third Party Terms
(a) This Agreement incorporates Third Party Terms imposed by third parties which relate to the use of the Third-Party Data which are set out in Clause 14.
(b) To the extent any other term of this Agreement is inconsistent with a term of Clause 14, the term in Clause 14 prevails to the extent of any inconsistency. -
Acceptable Use
2.1 Security and credentials
(a) The Client agrees to use reasonable endeavours to keep all Account details strictly confidential including those credentials used to access Climatics.
(b) The Client is responsible for its Account activities which occur via Climatics, whether those activities are authorised or not, unless they arise from a technical issue within Climatics.
2.2 Use of Climatics
(a) The Client must ensure that the Client’s IT systems and infrastructure used by the Client to access Climatics complies with the Minimum System Requirements as set out in their Schedule 1.
(b) The Client may only use Climatics for the sole purpose of for which Climatics was created and within the Client’s Own Business Operations.
(c) The Client undertakes not to upload, store or access any data on or via Climatics if such access or storage would:
(i) infringe a person’s Intellectual Property rights;
(ii) breach any Privacy Law; or
(iii) breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the jurisdiction in which EWN or the Client operates).
(d) While EWN uses commercially reasonable endeavours to maintain, update and use accurate data within Climatics, the Client acknowledges and agrees:
(i) Climate Intelligence contains inherent statistical uncertainties;
(ii) historical event data is limited by population bias, unreported events and over and under reported severity levels;
(iii) EWN cannot guarantee the completeness, accuracy, usefulness or timeliness of Climatics; and
(iv) EWN is not liable for the implications associated with any decisions the Client makes when relying on the inputs or outputs of Climatics.2.3 Conduct which is expressly prohibited
The Client must not:
(a) in any way tamper with, hinder or modify Climatics other than to the extent configuration options are made available to it;
(b) knowingly transmit any viruses or other disabling features to or via Climatics;
(c) integrate with Climatics other than via the facilities made available;
(d) use or include Climatics in any service bureau or fee generating service offered to third parties, without EWN’s written authority;
(e) using Climatics for the development of products or services for distribution to third parties other than related entities of the Client;
(f) intentionally disable or circumvent any protection or disabling mechanism of Climatics;
(g) upload any asset or area of interest data on or through Climatics other than via the user interface provided by EWN or in accordance with the training material;
(h) use Climatics in any way which could be reasonably expected to interfere with or damage Climatics, any other operator's systems, or another user's enjoyment of Climatics; or
attempt, facilitate or assist another person to do any of the above acts. -
Maintenance
3.1 Outages and maintenance
(a) The Client acknowledges Climatics operates using Third Party Infrastructure. From time to time Third Party Infrastructure may become inaccessible or unavailable. EWN neither controls nor is it liable for faults in Third Party Infrastructure, the telecommunication services needed to access it, nor the consequences which arise from faults in either.
(b) If it is necessary to interrupt the Clients use of Climatics, EWN will endeavour to provide reasonable notice (where possible) of when, and the anticipated duration for which, Climatics will be unavailable.
(c) The Client acknowledges and agrees:
(i) access to Climatics may be interrupted for many reasons, some of which are beyond EWN’s control;
(ii) during routine maintenance EWN may implement changes, additions or deletions to the functions, features, performance, or other characteristics of Climatics (Updates) which may change the manner in which it functions;
(iii) the provision of Updates to Climatics do not give rise to a breach of this Agreement provided they do not materially decrease its functionality; and
(iv) to make use of new features within Climatics the Client may be required to purchase additional modules or extensions to the current Access Package.
(d) The Client agrees EWN is not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such temporary interruptions will not constitute a breach of these terms. -
Confidentiality
(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) Notwithstanding any other provision of this Clause 4, a party may disclose Confidential Information to related companies, solicitors, auditors, insurers and accountants, or for the purpose of complying with any applicable law, regulation, order, rule of a stock exchange or generally accepted principles of good corporate governance.
(c) Each party will take all reasonable steps to ensure that its employees, agents, and any sub-contractors engaged for the purposes of the Agreement do not make public or disclose the other party's Confidential Information. -
Privacy
(a) The Client agrees and consents to EWN’s handling of Personal Information in accordance with EWN’s Privacy Policy.
(b) EWN may amend its Privacy Policy in its sole discretion. Where the Privacy Policy is amended the new version will be posted to the Website.(c) The Parties acknowledge and agree they will:
(i) notify the other party of any unauthorised access, use, modification, disclosure or other misuse of any Personal Information collected or accessed in connection with this Agreement as soon as practicable after becoming aware of such activity; and
(ii) provide reasonable assistance to the other party in the investigation, assessment and containment of any data breach associated with this Agreement. -
Intellectual Property
6.1 EWN’s warranties regarding Intellectual Property
(a) Climatics may use data sets developed by third parties. EWN warrants it is authorised to use all Intellectual Property in connection with these data sets.
(b) EWN warrants it owns or has a licence to use the Intellectual Property in Climatics.
6.2 The Client’s warranties regarding Intellectual Property
The Client warrants it will not do any of the following, or permit any person over whom it has effective control to:
(a) copy or reproduce, or create an adaptation or translation of, all or part of Climatics in any way;
(b) sell, license, sublicense, lease, rent or transfer to any third party, whether for profit or without charge, any portion of Climatics, including Third Party Data and Climate Intelligence on any medium, except as authorised by this Agreement within the Special Conditions listed in schedule 1; or
(c) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Climatics other than for the sole purpose for which the licence was granted.
6.3 Modifications and feedback
(a) The Client acknowledges and agrees, EWN is intended to own all Intellectual Property rights in all modifications to Climatics, including those which arise from the Client’s feedback, commentary or reviews and whether those modifications are provided for, by or on behalf of the Client
(b) To the extent that the Client may at any time acquire any right, title or interest in any part of Climatics, the Client immediately assigns to EWN all such right, title and interest.
6.4 Client Data
The Client:
(a) owns all right, title and interest in and to all Client Data;
(b) grants EWN a non-exclusive and limited license to use Client Data as necessary to perform its obligations under and in accordance with this Agreement;
(c) warrants that it has all rights necessary to grant such license and that its collection and use of Client Data complies with applicable laws; and
(d) acknowledges and agrees that EWN may share Client Data with third party service providers in order to operate Climatics
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Warranties
7.1 General Warranties
(a) EWN warrants that for the Term of this Agreement Climatics will perform substantially in compliance with any documentation EWN provides, including the training material and description of Climatics contained on the Website.
(b) Subject to the Non-excludable Conditions and any other express provision of this Agreement, EWN makes no warranties or guarantees:
(i) Climatics is fault free;
(ii) in relation to the accuracy, currency, completeness, quality, reliability or suitability of Climatics for any purpose or any Climate Intelligence, information or material contained within Climatics;
(iii) regarding Climatics’ fitness for any particular purpose which EWN has not expressed;
(iv) that Third Party Data or the Climate Intelligence is complete, accurate or up to date or that it meets any particular statistical degree of certainty;
(v) that Climatics will bring the Client into compliance with any law including the laws in which the Client operates; or
(vi) regarding the Client’s access to, or the results of its’ access to Climatics.
7.2 Warranties as to capacity
Each party represents and warrants to the other:
(a) it has full power and authority to execute this Agreement and observe and perform all of its obligations herein;
(b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this Agreement; and
(c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets. -
General Limits on Liability
8.1 Implied Conditions
EWN expressly excludes all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
8.2 Consequential Loss
Notwithstanding any other clause in this Agreement, and to the maximum extent permitted at law, neither party is liable to the other for any Consequential Loss.
8.3 Exclusion of Liability
EWN excludes all other liability for any costs suffered or incurred directly or indirectly by the Client or any other person in connection with this Agreement, including:
(a) those arising from the Clients interpretation of any Climate Intelligence, information or material contained in Climatics;
(b) Climatics being inaccessible to that Client for any reason;
(c) incorrect or corrupt data, lost data, or any inputs or outputs of Climatics;
(d) computer virus, trojan and other malware in connection with Climatics;
(e) statistical uncertainties associated with any Climate Intelligence or Third Party Data;
(f) any financial, regulatory, business continuity, actuarial or similar decisions of the Client;
(g) failure of any third party component including, without limitation, applications, websites, website content, application programming interfaces, Third Party Infrastructure, hardware failure, network failure, or power failure; or
(h) the Client’s participation in any experiments, beta tests or pilots.
8.4 Limits to liability
In any circumstances where the Non-excludable Conditions do not apply or where liability is not otherwise excluded, EWN’s aggregate cumulative liability is limited to the Fees paid pursuant to this Agreement.
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Indemnity
(a) The Client indemnifies the Indemnified against any Costs arising directly or indirectly from:
(i) the Client’s breach of the Agreement;
(ii) EWN’s enforcement of its rights in connection with the Agreement, including debt collection activities and legal costs on a full indemnity basis;
(iii) any harm to, claim or action by a third party listed in Clause 14, including to the third parties property arising directly or indirectly from the Client’s interpretation of data within Climatics.
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Termination
10.1 Termination for breach
This Agreement may be terminated immediately by either party if:
(a) the other party commits any material breach of any term of this Agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it (including a breach of the Payment Terms);
(b) the other party breaches a material provision of this Agreement that is not capable of remedy;
(c) the other party experiences an Insolvency Event; or
(d) it becomes unlawful for either party to perform its obligations under this Agreement.
10.2 Effect of Termination
(a) Upon termination:
(i) the Client will no longer have access to Climatics;
(ii) any consumable inclusions included in an Access Package will expire without a right to a refund;
(iii) EWN reserves the right to remove the Client Data from Climatics at any time following termination; and
(iv) the Client must, at EWN’s request return or destroy any Third Party Data, support documents, training material or other information held by the Client about Climatics.
(b) The Client is solely responsible for taking an extraction of any Client Data held in Climatics, which it deems necessary to maintain, prior to termination. -
Dispute resolution
11.1 Mandatory mediation
(a) A party claiming that a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute and the parties must submit themselves to the dispute resolution procedure set out in this clause 11.
(b) Subject to clause 11.2, the parties agree that if a Dispute arises, a party may not commence any legal proceedings relating to the Dispute unless it has complied with the provisions of this clause.
(c) If the parties cannot resolve the Dispute within 30 days of receiving a notice of the Dispute, then either party may (by giving notice in writing to the other party) require the Dispute to be referred for mediation. The mediation must be undertaken:
(i) in accordance with the rules of the Resolution Institute (Mediation Provider);
(ii) at a location agreed by the parties and in the absence of agreement in the capital city of the jurisdiction of the Agreement; and
(iii) using a mediator agreed by the parties and in the absence of agreement, by a mediator nominated by the Mediation Provider.
(d) For the avoidance of doubt, the role of any Mediation Provider and the rules to be applied to the mediation are aimed to assist in negotiating a resolution of the Dispute, and in that regard, a mediator must not act as an arbitrator and may not make a decision that is binding on a party.
(e) Each party must pay its own internal and legal costs in relation to complying with this clause 11.1. The mediator’s costs are to be shared equally.
(f) If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
11.2 Not applicable to the collection of debts or injunctive relief
The parties acknowledge and agree clause 11.1 does not:
(a) apply to the recovery of any debt; or
(b) prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court. -
General Provisions
12.1 Assignment
The parties may only assign, encumber, declare a trust over or otherwise create an interest in their rights under this document with the other party’s consent, which must not be unreasonably withheld.
12.2 Counterparts
This Agreement may be agreed to in any number of counterparts including where they are exchanged by email containing this Agreement as an unalterable attachment. All counterparts together will be taken to constitute one instrument.
12.3 Costs
Each party will bear its own costs in relation to the preparation, negotiation and execution of the Agreement and any variations.
12.4 Entire Agreement
The Agreement sets out all the parties’ rights and obligations relating to the subject matter of the Agreement, and it supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
12.5 Force Majeure
If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties' obligations under this Agreement, other than an obligation to pay the Fees, are suspended for the duration of and to the extent that they are affected by the Force Majeure Event. However, either party may end this Agreement if the Force Majeure Event continues for more than 60 days.
12.6 Governing Law
The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales.
12.7 Notices
The parties agree all notices, disclosures and other communications (other than the service of initiating applications in a court or tribunal) that are provided in accordance with this clause 12.7, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement must be:
(a) sent to the email address set out in the Parties section of this Agreement; or
(b) either delivered or posted by prepaid post to the address set out in the Parties section of this Agreement.
12.8 Rights Cumulative
Except as expressly stated otherwise in the Agreement, the rights of a party under the Agreement are cumulative and are in addition to any other rights of that party.
12.9 Survival
Clauses 4, 5, 6, 8, 9, 11 and any other clause in the Agreement which is expressed to survive or by its nature should survive, will survive termination or expiry of the Agreement for any reason.
12.10 Variations
Other than variations arising pursuant to clause 13.1, this Agreement may only be varied by written agreement signed by the parties.
12.11 Waiver
(a) Clauses and rights in the Agreement can only be waived in writing signed by the waiving party.
(b) Failure or delay of a party in exercising a right under the Agreement does not waive the party’s rights.
(c) A waiver will only waive the particular rights in the particular circumstances and will not waive any other rights, or the same rights in other circumstances. -
Definitions and Interpretation
13.1 Definitions
Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:
Access Package means the combination of fees and Climatics features made available to the Client, as set out in their Schedule 1.
Account or Climatics Account means the username and access credentials used to access Climatics.
Agreement means these terms and any document incorporated into them by reference.
Business Day means a day other than a Saturday, Sunday or public holiday in the place where the obligation is to be fulfilled.
Client Data means any data entered into, or reports generated from, Climatics, solely for the Client’s purposes.
Climate Intelligence means the compilations of climate data (in the form of figures, maps, or metrics) and algorithms accessible from within Climatics.
Climatics is the SaaS platform designed to provide Climate Intelligence to businesses for the purpose of identifying climate risk, facilitating disclosures, and supporting business investment decisions.
Climatics Core Software means the core Climatics software upon which the optional modules, interfaces and associated software operates.
Commencement Date means the date of this Agreement as set out in their Schedule 1.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, assets, the system operations associated with Climatics, and the security credentials used to access it. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement.
Consequential Loss means indirect or consequential loss not arising as a natural consequence of a breach or other event giving rise to liability of a party, any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity or loss of data.
Details Schedule means Schedule 1 to this Agreement.
Dispute takes its meaning from clause 11.1(a).
EWN means Early Warning Network Pty Ltd ACN 122 940 176.
Fees means the fees payable to access Climatics as set out in the Access Package.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic or pandemic, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Indemnified means EWN and its directors, employees, contractors and agents.
Insolvency Event means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.
Internal Business Purpose and Own Business Operations each mean for the use by the Client for the purpose of completing their risk assessments or other deliverables for internal use or as part of deliverables to third party receivers.
Minimum System Requirements means the minimum system requirements users must operate in order to make use of Climatics, as set out in their Schedule 1.
Non-excludable Condition means any guarantee, condition or warranty which cannot by law be excluded.
Payment Terms means the payment terms set out in their Schedule 1.
Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.
Privacy Law means
(a) the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles; and
(b) any other law that governs the use, disclosure or management of data or information relating to persons which applies to either party to this Agreement.
Privacy Policy means the privacy policy available on the Website or as amended by EWN from time to time.
Term means the duration of this Agreement as set out in the Access Package.
Third Party Infrastructure means service infrastructure operated by third parties to this Agreement including cloud service providers, internet service providers, network service providers and telecommunication service providers.
Third Party Data means data sets incorporated into Climatics’ Climate Intelligence which may be subject to Third Party Terms.
Third Party Terms mean terms incorporated into the agreement which relate to the use of Third Party Data as set out in Clause 14.
Website means ewn.com.au and any of its subdomains.
13.2 Interpretation
Unless it is expressly stated that a different rule of interpretation will apply:
(a) a reference to a part, clause, annexure, exhibit, appendix or schedule is a reference to a part of, clause of, an annexure, exhibit, appendix or schedule to this Agreement and a reference to this Agreement includes any annexure, exhibit, appendix and schedule;
(b) a reference to an agreement includes any variation or replacement of the agreement;
(c) the singular includes the plural and the opposite also applies;
(d) if the due date for any obligation is not a Business Day, the due date will be the next Business Day;
(e) all currency amounts are in Australian dollars;
(f) headings are provided for convenience and do not affect the interpretation of the documents making up the Agreement;
(g) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
(h) “includes” and “including” must be read as if followed by the words “without limitation”;
(i) a reference to a clause refers to clauses in this Agreement and is a reference to its sub-clauses;
(j) if a word or phrase is defined, its other grammatical forms have corresponding meanings;
(k) agreements, representations and warranties made by two or more people will bind them jointly and severally;
(l) a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation;
(m) a person includes the person’s executors, administrators and permitted novatees and assignees;
(n) a reference to a person includes a firm, a body corporate, an unincorporated association or an authority and vice versa;
(o) a reference to conduct includes any omission, representation, statement or undertaking, whether or not in writing;
(p) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it; and
(q) if any part of the Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected. -
Third Party Terms
14.1 JBA (Flood) Data
(a) JBA Risk Management Pty. Ltd. 201611541N, of Carpenter Haus, 36 Carpenter Street, Singapore 059915 (JBA). Makes available to EWN a unique set of Australian flood data (JBA Flood Data) which is incorporated into Climatics.
(b) To access JBA Flood Data through Climatics, the Client must agree to the terms set out in this Clause 1
14.2 JBA Terms
(a) The licence granted to the Client to use the JBA Flood Data is personal, revocable, non-exclusive, non-transferable and limited to a period of use being not more than five years, for:
(i) internal business use;
(ii) the provision of JBA Flood Data to the Client’s legal or regulatory authorities as required by law or in support of the Client’s business;
(iii) the provision of JBA Flood Data to the Client’s own customers who are seeking insurance or reinsurance from that Client but only in respect of risk(s) that are insured or owned by those Client’s customers; and
(iv) the provision of JBA Flood Data to reinsurers that are offering or providing reinsurance to the Client but only in respect of aggregated risks for which the Client is seeking reinsurance.
(b) Other than as expressly set out in clause 14.2(a), above, the Client is prohibited from:
(i) modifying, translating, format-changing, enhancing, reproducing, copying (except where strictly necessary for system back up), redistributing, disseminating, selling, dealing with, licensing, encumbering, reverse engineering, disassembling or decompiling the JBA Flood Data, or any part of thereof, except to the extent permitted by law;
(ii) using the JBA Flood Data in any manner for the creation of products or services for distribution;
(iii) using JBA Flood Data other than as expressly set out in clause 14.2(a);
(iv) assigning or dealing in any way with its rights under the Agreement;
(v) putting, or allowing the JBA Flood Data (or any material derived from it) to be put on any free, open or public access website; and
(vi) distributing or granting licences of the JBA Flood Data (in whatever form) or material derived from JBA Flood Data (including interrogating JBA Flood Data), other than as expressly set out in clause 14.2(a).
(c) The Client acknowledges and agrees that all intellectual property rights in the JBA Flood Data are the absolute property of JBA (or where relevant its third party licensors). Material which is derived, developed or copied from JBA Flood Data shall be deemed assigned to JBA as legal and beneficial owner at creation, except as provided in this paragraph. However, where that material is created by Client under relevant Permitted Use by the Client authorised by EWN in accordance with the Agreement (and JBA receives relevant JBA Royalty from EWN in respect of it), the Intellectual Property in that material shall belong to the Client.
(d) The licence to use the JBA Flood Data terminates automatically in the event the Client materially breaches any of the requirements/obligations set out in this Clause 14. All use of JBA Flood Data and material derived from JBA Flood Data shall cease promptly in such event, except as follows:
(i) The Client may continue to use limited material created using JBA Flood Data following the termination of the Agreement. Such material is limited to that which is permitted by both this Clause 14 and the Agreement as a whole and is in static form, i.e. such that after termination of the Agreement it is not changed, added to, updated, modified in any other way or used in or to create any new, updated, supplemented or modified product, tool, analysis or material.
(ii) Material which is not in static form (including probabilistic modelling and models and output therefrom, which is automatically deemed to be not static) must not be used after termination of the Agreement. The Client is prohibited from using JBA Flood Data and from deriving any new, updated, supplemented or modified product, tool or material from JBA Flood Data, after the date of termination of the Agreement.
(e) The Client hereby authorises EWN to provide JBA details of the Clients use of the JBA Flood Data as may be required by any relevant third party licensor provider, for onward transmission to that third party licensor if applicable.
(f) In so far as the Client is, or is deemed to be, or acts for and on behalf of or on the authority of a public authority for the purposes of information access regimes including but not limited to state, territory and the Commonwealth freedom of information and right to information legislation (Information Access Regimes):
(i) the Client acknowledges that JBA and EWN consider that JBA Flood Data is exempt from disclosure because JBA Flood Data is:
A. proprietary to JBA and disclosure would harm the interests of JBA (including its commercial interests);
B. protected by database and other Intellectual Property rights;
C. confidential and the disclosure of it by the Client would constitute a breach of confidence actionable by JBA and/or EWN; and
D. confidential, commercial or industrial information protected by laws to protect a legitimate economic interest.
(ii) The Client must, in the event it receives a request for information (Access Request) under the Information Access Regimes pursuant to which the JBA Flood Data might be disclosed, and at its own cost:
A. immediately notify JBA and EWN of the Access Request and provide JBA and EWN with full and complete details of the Access Request and the JBA Flood Data that may be disclosed, together with any other information JBA may request;
B. as soon as possible after receipt of the Access Request, consult with EWN and JBA as to whether the JBA Flood Data constitutes information which is exempt from disclosure or publication pursuant to the Information Access Regimes and/or pursuant to the matters set out above;
C. notify JBA and EWN immediately of any final decision as to disclosure of the JBA Flood Data and no less than 72 hours before any proposed disclosure, as to what if any of the JBA Flood Data (or any material derived from JBA Flood Data) is proposed to be disclosed; and
D. co-operate fully with the requirements set out in this paragraph (f).
(g) Where the Client is, or is deemed to be, or acts for and on behalf of or on the authority of a Public Authority under the Information Access Regimes and the Client seeks to make disclosure or discloses JBA Flood Data under the Information Access Regimes without the consent of EWN and JBA, such disclosure shall entitle EWN and/or JBA to terminate the Agreement with immediate effect and without liability on their part.
(h) The Client agrees to bring no claim against JBA in connection with this Agreement, and JBA shall have no liability whatsoever to the Client under or in connection with this Agreement or the subject matter of it, except in respect of liability which by law cannot be excluded or which by law cannot be limited (as to which JBA's liability is limited to the maximum extent possible).
(i) The Contracts (Rights of Third Parties) Act 1999 applies for the benefit of JBA such that JBA and/or JBA Risk Management Limited may (but shall have no obligation to) enforce any of the terms in the Agreement which relate to disclosure under the Information Access Regimes, limitation on JBA's liability, use of JBA Flood Data or infringement of Intellectual Property Rights in the JBA Flood Data.
(j) If JBA provides any assistance, support or services, including training, support and consultancy (Assistance), to the Client in connection with or following an Agreement, JBA's total liability (save in respect of liability which cannot by law be excluded or limited) in connection with such Assistance shall not exceed the higher of the value of the JBA Royalty paid by EWN to JBA in respect of that Agreement in the twelve months immediately preceding JBA providing such Assistance or GBP£1000, except where JBA and Client have entered into a written agreement in respect of such Assistance and that written agreement provides for an alternative limit on JBA's liability in respect of such Assistance in which case such alternative limit on JBA's liability shall apply.
(k) The Agreement and any matter, dispute or claim arising from or in connection with the Agreement in so far as it applies to JBA Flood Data and its use (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The Client must submit to the mediation process prescribed in the Agreement and, subject to that, to the exclusive jurisdiction of the English courts, save that this shall not restrict the right of JBA and/or JBA Risk Management Limited to take proceedings in any other court of competent jurisdiction in connection with securing, protecting or preventing misuse of JBA's Intellectual Property.
END OF AGREEMENT