Revised: August 1, 2024

Please note: These Weather Service and Guarantee Terms contain an arbitration clause and class action waiver.  If you reside in the United States, this provision applies to all disputes with Sensible.  If you reside outside of the United States, this provision only applies to any action you bring against Sensible in the United States, but does not otherwise apply. It affects how disputes with Sensible are resolved. By accepting these Weather Service and Guarantee Terms, you agree to be bound by this arbitration clause and class action waiver.

Please read these Weather Service and Guarantee Terms carefully as they contain important information about your legal rights, remedies and obligations.  By purchasing the Weather Service and Guarantee, you agree to comply with and be bound by these Weather Service and Guarantee Terms.  In addition, your use of the Weather Service and Guarantee may be subject to additional terms (“Supplemental Terms”) that will either be listed in these Weather Service and Guarantee Terms or will be presented to you at the relevant time in connection with the Weather Service and Guarantee.  If these Weather Service and Guarantee Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control solely to the extent of the conflict. The applicable Supplemental Terms are hereby incorporated into these Terms by reference.

The Weather Service and Guarantee is provided for your personal, consumer use only unless otherwise specified.  The Weather Service and Guarantee is not intended for commercial or business use and such use is expressly prohibited.

 For purposes of these Weather Service and Guarantee Terms, the terms “we”, “us” or “Sensible” mean Sensible Weather Technologies, LLC and any of its predecessors, successors, assigns, corporate parents, subsidiaries and affiliates, and each of their respective officers, directors, employees, agents and representatives.   Except as permitted by law, these Weather Service and Guarantee Terms do not affect your statutory rights.  If you would like a written copy of the Weather Service and Guarantee Terms, please email us.

 By accessing or using the Weather Service and Guarantee, you agree to the collection, use and disclosure of your personal information as described in our Privacy Policy.

‍I. The Weather Service and Guarantee

This description of Sensible’s Weather Service and Guarantee includes references to Supplement Terms presented to you through Sensible’s or the Merchant’s website or directly through another form of media operated by Sensible or the Merchant at the time the Weather Service and Guarantee is offered to you (the “Offer”). 

The ‍Weather Service

Sensible is engaged in business as a climate technology company and weather forecasting service provider.  We have partnered with the entity (the “Merchant”) through whom you booked your accommodation or event (your “Experience”) associated with the Weather Service and Guarantee.  The Weather Service and Guarantee is intended to help you better plan for your Experience and minimize the potential negative impacts due to unexpected weather occurring during your Experience.  The Weather Guarantee is a warranty by Sensible of the performance of its Climate Engine (as defined below) and is not an insurance policy or a financial derivative product.

Sensible operates its Weather Service using its proprietary climate data engine (its “Climate Engine”) to formulate a unique understanding of the expected weather at a specified time and location.  Using its Climate Engine, Sensible offers you a weather service tailored to your Experience (the “Weather Service”) by:

• Creating daily weather forecasts covering the duration of your Experience.
• Creating analysis and conclusions of the likelihood of the occurrence of a specific weather event(s) (the “Weather Event”) in excess of a certain amount (the “Guaranteed Amount”) during the hour(s) of your Experience (the “Guaranteed Window”) specified in the Offer (collectively, the “Guaranteed Forecast”).
• Monitoring the weather forecast leading up to the commencement of your Experience.
• Monitoring weather information for the actual weather occurring during your Experience.  

The Weather Guarantee and Warranty Payments

As described in this Section and in Section V (Warranty Payment Process), Sensible warrants the performance of its Climate Engine by guaranteeing that the actual weather occurring during your Experience will not deviate from the Guaranteed Forecast as presented in the Offer (the “Weather Guarantee”).  If Sensible’s Climate Engine fails to accurately forecast the actual weather in its Guaranteed Forecast and therefore causes the Weather Guarantee to fail, Sensible will provide you a warranty payment as specified in the Offer for the failure of its Weather Service to perform as expected (a “Warranty Payment”).

Sensible will determine your eligibility for a Warranty Payment on each day of your Experience based on the occurrence of one of the following events (each, a “Qualifying Event”): 

• Immediately prior to the commencement of the Guarantee Window:  the Weather Event is forecast to occur in excess of the Guaranteed Amount during the Guaranteed Window.
• During the Guarantee Window:  the Weather Event occurred in excess of the Guaranteed Amount.

Please refer to Section V (Warranty Payment Process) for additional details of Warranty Payment eligibility pursuant to the Weather Guarantee via Sensible’s Pre- and Post-Guarantee Window Monitoring, and information on the payment process.

II. Limitations and Exclusions

The Weather Service and Guarantee do not apply for any of the following:  (a) Weather Services purchased for commercial or business use; and (b) Experiences not booked directly through Sensible’s or the Merchant’s website or directly through another form of media operated by Sensible or the Merchant. 

You may purchase the Weather Service and Guarantee only once for an Experience.  Any additional purchases of the Weather Service and Guarantee for the same Experience will be deemed null and void.

III. Conditions to the Weather Service and Guarantee

In order to be eligible to receive the Weather Service and Guarantee and any Warranty Payments under these Weather Service and Guarantee Terms, you must fully comply with each of the following conditions. Your failure to fully comply will prevent you from continuing to use the Weather Service and/or obtaining any Warranty Payments pursuant to the Weather Guarantee.  In all cases, the onus will be upon you to demonstrate that you have complied with the following conditions:

1. You must be 18 years or older.
2. You are legally capable of entering into binding contracts.
3. You must have purchased (and not cancelled) the Experience associated with the Weather Service and Guarantee from a Merchant that has partnered with Sensible.
4. All information you provide to Sensible and/or the Merchant is truthful and accurate.
5. Your use of the Weather Service and Guarantee does not violate any applicable law or regulation.

You must not have misrepresented any facts or committed fraud or any other dishonest or deceptive act in connection with the booking with the Merchant.  Any such misrepresentation, fraud, dishonest or deceptive act by you, at any time, will result in immediate termination of these Weather Service and Guarantee Terms, including denial of warranty payments, notwithstanding Section V (Warranty Payment Process) below.

Sensible reserves the right to request and receive from you at any time documentation pertaining to your Experience, including documentation confirming the purchase and date(s), time(s) and location(s) associated with your Experience.  You must cooperate with Sensible, including signing any documents, and timely responding to any reasonable requests for additional information or documentation that Sensible or its designees may require or request in connection with the Weather Service and/or any potential or actual Warranty Payments.  Sensible may terminate these Weather Service and Guarantee Terms at any time, including denial of Warranty Payments, if Sensible determines that the information you provide Sensible is insufficient, incomplete, or inaccurate.

You acknowledge and agree that Sensible may send you electronic communications prior to and during your Experience that relate to your Experience and/or the Weather Service and Guarantee.

IV. Purchase Payment Processing

The Weather Service and Guarantee may be made available for purchase by Sensible or the Merchant, as applicable.  For purchases of the Weather Service and Guarantee made through Sensible, all payment processing will be performed by one of Sensible’s third-party payment processors (such processors collectively, the “Payment Processor”).  Your use of the payment processing provided by the Payment Processor may be subject to additional terms, as provided by the Payment Processor processing your respective transaction and as may be modified by such Payment Processor from time to time (collectively, the “Payment Processor Agreement”).  As a condition of using the Payment Processor’s payment processing, you must provide accurate and complete information in connection with such payment processing, and you authorize us to share this information with the Payment Processor and to charge your payment method for all amounts that may become due under these Weather Service and Guarantee Terms. 

 All bank, credit card, debit card or other payment information is sent directly to and stored by the Payment Processor using its security protocols.  Sensible does not store your payment information on its systems and will not have any responsibility for the safety or security of that information.  Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to purchase the Weather Service and Guarantee.  We may change or add other purchase payment processing services at any time, which may be subject to additional terms or conditions.

 All purchases of the Weather Service and Guarantee made through the Merchant are subject to the terms and conditions provided by such Merchant.  Sensible does not store your payment information provided to the Merchant or its payment processors on its systems and will not have any responsibility for the safety or security of that information. 

V. Warranty Payments Process

Qualifying Event

As discussed above, Sensible monitors the weather and will attempt to contact you automatically if you become eligible for a Warranty Payment pursuant to the Weather Guarantee.

Eligibility for Warranty Payments is determined by the occurrence of a Qualifying Event.  See the description above of each Qualifying Event in Section I (The Weather Service and Guarantee—The Weather Guarantee and Warranty Payments). 

The occurrence of a Qualifying Event is measured using the data sources listed below (as determined by the location of your Experience).  We may change or add other data sources at any time. 

If we have not contacted you about your eligibility for a Warranty Payment and you believe you are eligible for a Warranty Payment, please contact Sensible by email at support@sensibleweather.com.

Warrant Payment Processing

 If you are eligible for a Warranty Payment, Sensible will ask you to sign up as a registered user of the Weather Service (a “Member”).  To sign up as a Member you must create an account (“Member Account”) by submitting your email address to us and creating a password to be used in conjunction with that email address.  You are responsible for maintaining the confidentiality of your Member Account and password and for restricting access to any device used to access your Member Account, and for any activity taking place on or through your Member Account.

Once you create a Member Account, you will be asked to select one of the payment methods accepted by Sensible (each, a “Warranty Payment Method”).  Payment processing of your eligible Warranty Payment will be performed by one of Sensible’s third-party warranty payment processors (such processors collectively, the “Warranty Payment Processor”).  Your use of the payment processing provided by the Warranty Payment Processor may be subject to additional terms, as provided and as may be modified by the Warranty Payment Processor from time to time (collectively, the “Warranty Payment Processor Agreement”).  As a condition of using the Warranty Payment Processor’s payment processing, you must provide accurate and complete information in connection with such payment processing, and you authorize Sensible to share this information with the Warranty Payment Processor and to use your Warranty Payment Method for all amounts that may become owed to you pursuant to the Weather Guarantee.  

All bank, credit card, debit card or other payment information is sent directly to and stored by the Warranty Payment Processor using its security protocols.  Sensible does not store your payment information on its systems and will not have any responsibility for the safety or security of that information.  Your use of the Warranty Payment Processor’s payment processing is conditioned upon your compliance with the Warranty Payment Processor Agreement, and if the Warranty Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use such Warranty Payment Processor for your eligible warranty payment. We may change or add other warranty payment processing services at any time, which may be subject to additional terms or conditions.

Eligible Warranty Payments will be made through the Warranty Payment Method you select in the amount specified at the time of purchase.  All Warranty Payments will be made in the currency you used to book your Experience with the Merchant, unless otherwise agreed by Sensible in writing.  The Merchant will not issue refunds or vouchers, and will not reimburse you for other expenses. 

The timing of your actual receipt of an eligible Warranty Payment will vary based on the Warranty Payment Method you select.  Warranty payments must be collected by you within 180 days of the first notification.  Sensible will periodically remind you of any eligible outstanding Warranty Payments that you have not collected.  Warranty Payment eligibility using the process set forth above will be voided after 180 days.  After 180 days, your warranty payment may be declined, and you must contact Sensible by email at support@sensibleweather.com to inquire about the availability of a Warranty Payment.

VI. Acknowledgments and Agreements by the Customer

The Weather Service and Guarantee is not an insurance policy or financial derivative product.  You acknowledge and agree that: These Weather Service and Guarantee Terms are not intended to constitute an offer to insure, do not constitute insurance or an insurance contract, and do not take the place of insurance obtained or obtainable by you.  The benefits provided under these Weather Service and Guarantee Terms are solely as set forth in the paragraph entitled “Weather Service and Guarantee” above and such benefits are not assignable or transferable by you, including without limitation any transfer or assignment by operation of law or in connection with your divorce or death.

VII. Modification or Termination of Weather Service and Guarantee Terms

To the fullest extent permissible by applicable law in your jurisdiction, Sensible reserves the right to modify or terminate these Weather Service and Guarantee Terms, at any time, in its sole discretion.  If Sensible makes any material modifications to these Weather Service and Guarantee Terms, we will notify you by posting such modified Weather Service and Guarantee Terms on this page, and indicate the date these Weather Service and Guarantee Terms were last revised.  We may also provide notice of such changes through the Weather Service and Guarantee platform, in an email notification to you or through other reasonable means (including where we are legally required to do so).  Sensible will continue to process all purchases of the Weather Service and Guarantee purchased prior to the effective date of such modification in accordance with the prior Weather Service and Guarantee Terms.

If Sensible terminates these Weather Service and Guarantee Terms, Sensible will provide you with notice by email at least thirty (30) days before such termination and Sensible will continue to process all eligible warranty payment requests.  To the extent such termination is effective prior to the commencement of your Experience, Sensible will refund you the amounts actually paid for the corresponding Weather Service and Guarantee and you will not be eligible for any further services or warranty payments under these Weather Service and Guarantee Terms.

In addition to and without limiting Sensible’s rights set forth above in the immediately preceding paragraph, Sensible reserves the right to modify or terminate these Weather Service and Guarantee Terms generally or in any jurisdiction, at any time, in its sole discretion, if:  (a) these Weather Service and Guarantee Terms are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (b) the Weather Service and Guarantee is construed to be a futures, option, swap or other instrument regulated by any governmental or regulatory authority or court in any jurisdiction; (b) Sensible is required to obtain a license or permit of any kind to continue to provide these Weather Service and Guarantee Terms in any jurisdiction; or (d) Sensible determines or a court or arbitrator holds that the provisions of these Weather Service and Guarantee Terms violate applicable law.  If Sensible modifies or terminates these Weather Service and Guarantee Terms in accordance with the foregoing, Sensible will process all warranty payment requests that you submitted prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority.  To the extent you have not made a request for an eligible warranty payment prior to the effective date of modification or termination, or the Weather Service and Guarantee cannot otherwise be provided or processed as a result of the foregoing, Sensible will refund you the amounts actually paid for the Weather Service and Guarantee.

VIII. Disclaimers and Limitations of Liability

‍IN NO EVENT SHALL SENSIBLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (A) YOUR USE OR INABILITY TO USE OUR WEBSITE (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR THE MERCHANT’S EXPERIENCE (C) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR SOFTWARE TO YOU, (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY, (E) ANY FAILURE OF ANY THIRD PARTY INFORMATION LISTED ON OUR WEBSITE, INCLUDING ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, (F) ANY LOSS OF PROFIT OR OTHER COMMERCIAL LOSSES OR (G) ANY ERRORS OR OMISSIONS IN OUR WEBSITE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.

For jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Weather Service and Guarantee Terms, if the applicable law of your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the fullest extent permissible by applicable law in your jurisdiction. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by our negligence or that of any of our officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOUR ABILITY TO RECEIVE THE WEATHER SERVICE AND GUARANTEE IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THESE WEATHER SERVICE AND GUARANTEE TERMS. YOU AGREE OUR TOTAL LIABILITY TO YOU IS NOT MORE THAN THE AMOUNT(S) PAID BY YOU FOR THE WEATHER SERVICE AND GUARANTEE UNDER THIS LIABILITY AROSE.

IX. U.S. Customers Only - Dispute Resolution and Arbitration Agreement

THIS SECTION IX ONLY APPLIES IF YOU RESIDE IN THE UNITED STATES.

PLEASE READ THE FOLLOWING PARAGRAPHS IN THIS SECTION IX CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SENSIBLE, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SENSIBLE. THIS SECTION DOES NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE EEA OR THE UK, OR IF OTHERWISE PROHIBITED BY APPLICABLE LAW.

Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and we agree that any dispute, claim, or request for relief by or against Sensible arising out of or relating in any way to the Weather Service and Guarantee  or these Weather Service and Guarantee Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that (a) you and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Sensible may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  

Informal Dispute Resolution

There might be instances when a Dispute arises between you and Sensible.  If that occurs, Sensible is committed to working with you to reach a reasonable resolution. You and Sensible agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Sensible therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of his or her intent to initiate an Informal Dispute Resolution Conference, which shall occur within 45 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. Notice to Sensible that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@sensibleweather.com or regular mail to our offices located at 730 Arizona Avenue, Santa Monica, California, 90401, Attn: Legal. The notice must include: (a) your name, telephone number, mailing address, e‐mail address associated with your account; (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple customers in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

Arbitration Rules and Forum

These Weather Service and Guarantee Terms evidence a transaction involving interstate commerce and notwithstanding any other provision herein with  respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. §1 et seq. (“FAA”) will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.  If the Informal Dispute Resolution Conference process above does not resolve satisfactorily within sixty (60) days after receipt of the notice, you and Sensible agree that either party shall seek to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  

A party who desires to initiate arbitration must provide the other party with a request for arbitration (the “Request”).  The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username as well as the email address associated with any applicable account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; and (d) a statement certifying completion of the Informal Dispute Resolution Conference as described above.  If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  

Disputes shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any arbitration of a Dispute relating to the Weather Service and Guarantee  shall also be subject to the allocation of arbitration costs and other requirements of the JAMS’ policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Arbitration Rules.  

Authority of Arbitrator 

The arbitrator shall have exclusive authority to (a) determine the scope, enforceability, or applicability of the Arbitration Agreement, whether the Disputes are arbitrable, and the propriety of commencing the arbitration and (b) resolve any Dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The exceptions to the preceding sentence are: (1) all Disputes arising out of or relating to the class action waiver, including any claim that all or part of the class action waiver is unenforceable, illegal, void or voidable, or that such class action waiver has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes arising out of or relating to the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (3) all Disputes arising out of or relating to whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration will decide the rights and liabilities, if any, of you and Sensible. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration”. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, subject to the arbitral forum rules and the Arbitration Agreement, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us.  Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator's awarding of damages must be consistent with the terms of the “Limitation of Liability” section of these Weather Service and Guarantee Terms as to the types and the amounts of damages for which a party may be held liable.

If you prevail in arbitration, you may seek an award of reasonable attorneys’ fees and expenses, to the extent permitted under applicable law. Sensible will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration, unless the arbitrator finds that either the substance of your Dispute or the relief sought in your Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations.

Waiver of Jury Trial

YOU AND SENSIBLE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Sensible are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above.  There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.   

Waiver of Class or Other Non-Individualized Relief

ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS EXPRESSLY PROVIDED IN THE SUBSECTION ENTITLED “BATCH ARBITRATION”. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Notwithstanding anything to the contrary in this Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class of Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Sensible agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may litigated in the federal courts located in Los Angeles, California. All other Disputes shall be arbitrated. This subsection does not prevent you or Sensible from participating in a class-wide settlement of claims.

Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Sensible agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Sensible by or with the assistance of the same law firm, group of law firms or organizations within a thirty (30) day period (or otherwise in close proximity), JAMS (1) will administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Sensible.

You and Sensible agree to cooperate in good faith with JAMS to implement the Batch Arbitration approach including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section. 

30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 730 Arizona Avenue, Santa Monica, California, 90401, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your SW account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Severability 

Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with Sensible.

Modification

Notwithstanding any provision in these Weather Service and Guarantee Terms to the contrary, we agree that if Sensible makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Sensible at the following address: 730 Arizona Avenue, Santa Monica, California, 90401. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Weather Service and Guarantee Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating to these Weather Service and Guarantee Terms, the provisions of the “Dispute Resolution” section as of the date you first accepted the terms of these Weather Service and Guarantee Terms (or accepted any subsequent changes to these Weather Service and Guarantee Terms) remain in full force and effect. Sensible will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Weather Service and Guarantee Terms.

X. General Provisions

Indemnification 

To the fullest extent permissible by applicable law in your jurisdiction, you agree to release, defend, indemnify, and hold Sensible and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the Weather Service and Guarantee and these Weather Service and Guarantee Terms.

Entire Agreement

These Weather Service and Guarantee Terms constitute the entire and exclusive understanding and agreement between Sensible and you regarding the Weather Service and Guarantee and these Weather Service and Guarantee Terms, and supersede and replace any and all prior oral or written understandings or agreements between Sensible and you regarding the Weather Service and Guarantee.

Assignment

You may not assign or transfer the Weather Service and Guarantee or these Weather Service and Guarantee Terms, by operation of law or otherwise, without Sensible’s prior written consent. Any attempt by you to assign or transfer the Weather Service and Guarantee or these Weather Service and Guarantee Terms, without such consent, will be null and of no effect. Sensible may assign or transfer the Weather Service and Guarantee or these Weather Service and Guarantee Terms, at its sole discretion, without restriction. Subject to the foregoing, these Weather Service and Guarantee Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Electronic Communications

The communications between you and Sensible use electronic means, whether you use the Weather Service or send us emails, or whether Sensible posts notices on the Weather Service platform or communicates with you via email.  For contractual purposes, you: (a) consent to receive communications from Sensible in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sensible provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.

Notices 

Unless specified otherwise, any notices or other communications to customers permitted or required under this Agreement, will be in writing and given to you at the email address you provide to us or the Merchant, as applicable, or in any of the ways specified in the paragraph above entitled “Electronic Communications.”  In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee. 

Venue

To the extent the parties are permitted under these Weather Service and Guarantee Terms to initiate litigation in a court, to the fullest extent permissible by applicable law in your jurisdiction, both you and Sensible agree that all claims and disputes arising out of or relating to the Weather Service and Guarantee Terms or the use of the Weather Service and Guarantee will be litigated exclusively in the state or federal courts located in Los Angeles, California.  If you have your habitual residence in a member state of the EEA or the UK, this paragraph does not apply to you and you may bring a claim to enforce your consumer rights in connection with these Weather Service and Guarantee Terms in your country of residence. 

Governing Law

To the fullest extent permissible by applicable law in your jurisdiction, these Weather Service and Guarantee Terms shall be governed by and construed in accordance with the internal laws of the state of California without giving effect to any choice of law provision of rule.  However, if you have your habitual residence in a member state of the EEA or the UK, you may benefit from additional rights and protection afforded to you by mandatory provisions of the laws of your country of residence, and nothing in these Weather Service and Guarantee Terms will affect the application or enforceability of these additional rights and protection.

Third Party Rights

These Weather Service and Guarantee Terms are between you and Sensible, and no other person shall have any rights to enforce or otherwise rely on any of its terms and conditions. 

Waiver and Severability 

The failure of Sensible to enforce any right or provision of these Weather Service and Guarantee Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sensible. Except as expressly set forth in these Weather Service and Guarantee Terms, the exercise by either party of any of its remedies under these Weather Service and Guarantee Terms will be without prejudice to its other remedies under these Weather Service and Guarantee Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Weather Service and Guarantee Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Weather Service and Guarantee Terms will remain in full force and effect.

XI. Contacting Sensible

If you have any questions about these Weather Service and Guarantee Terms, please email us at support@sensibleweather.com or contact us by mail at Sensible Weather Technologies, LLC, 730 Arizona Avenue, Santa Monica, California, 90401.