DTN Addendum – Wildfire

The following additional terms set forth in this Addendum apply to any use of DTN’s Services in relation to Wildfire Events, whether potential or actual, as defined herein.

Definitions. For purposes of this Addendum, the following terms have the meanings set forth below. Capitalized terms not otherwise defined in this Addendum have the meaning set forth in the Terms of Service:
1. “Addendum” means this Wildfire Addendum.
2. “Wildfire Claims” means any action, claim, suit, or proceeding brought against DTN by Customer or brought against Customer by an unaffiliated third-party alleging that the Services, as provided by DTN to Customer, caused damages, costs, expenses, or liabilities resulting from any potential or actual Wildfire Event.
3. “Wildfire Events” means any incident or condition involving fire in wildland areas (or capable of spreading into wildland settings or from wildland settings into rural, suburban, or urban areas) arising from natural causes, human activity, or utility infrastructure which leads to, or has the potential to lead to, one or more of the following: ignition, spread beyond initial containment, damage to property or life, harm to the environment or natural resources, disruption of utility service, evacuation or public health impacts, or triggering of mitigation responses (including preventative utility shutoffs and emergency measures enacted in recognition of elevated wildfire risk).
Disclaimer of Warranty. SECTION 5.3 IN THE TERMS OF SERVICE IS EXPRESSLY INCORPORATED BY REFERENCE AND SUPPLEMENTED AS FOLLOWS. THE SERVICES, DATA AND EQUIPMENT ARE PROVIDED BY DTN “AS IS.” EXCEPT TO THE EXTENT WHERE SUCH IS PROHIBITED BY APPLICABLE LAW, DTN DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICES OR EQUIPMENT WILL OPERATE ERROR-FREE, (II) CUSTOMER’S USE OF THE EQUIPMENT OR SERVICES WILL BE UNINTERRUPTED, OR (III) ALL DEFECTS WILL BE IDENTIFIED OR RESOLVED, INCLUDING, FOR EACH OF THE FOREGOING, PRIOR TO OR DURING POTENTIAL OR ACTUAL WILDFIRE EVENTS. USE OF THE SERVICES BY CUSTOMERS, INCLUDING RELIANCE ON THE SERVICES IN RELATION TO POTENTIAL OR ACTUAL WILDFIRE EVENTS, IS AT THEIR OWN RISK.
Disclaimer of Use in High-Risk Activities. SECTION 5.4 IN THE TERMS OF SERVICE IS EXPRESSLY INCORPORATED BY REFERENCE AND SUPPLEMENTED AS FOLLOWS. THE SERVICES, DATA AND EQUIPMENT ARE NOT FAULT-TOLERANT AND ARE NOT INTENDED FOR USE IN ANY SITUATION OR ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING ANY USES IN RELATION TO WILDFIRE EVENTS IN WHICH FAILURE OF THE SERVICES, DATA OR EQUIPMENT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, PHYSICAL, ENVIRONMENTAL OR PROPERTY DAMAGE, OR ECONOMIC DAMAGE OR LOSS. DTN EXPRESSLY DISCLAIMS ANY LIABILITY AND ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS RELATED TO THE FOREGOING.
Inherent Uncertainty of Weather Forecasting. SECTION 5.5 IN THE TERMS OF SERVICE IS EXPRESSLY INCORPORATED BY REFERENCE AND SUPPLEMENTED AS FOLLOWS. CUSTOMER ACKNOWLEDGES THE INHERENT UNCERTAINTY IN WEATHER FORECASTING AND ACCEPTS THAT DTN MAKES NO GUARANTEE OR WARRANTY AS TO THE ACCURACY OR TIMING OF ANY WEATHER FORECAST AND/OR HINDCAST RELATED TO WILDFIRE EVENTS (OR ANY DATA BASED ON OR DEPENDENT UPON SUCH WEATHER FORECASTS AND/OR HINDCASTS RELATED TO WILDFIRE EVENTS) PROVIDED BY DTN, ANY LIABILITY ON THE PART OF DTN ARISING FROM ANY ACTUAL OR ALLEGED INACCURACY OR DELAY IN ANY WEATHER FORECAST AND/OR HINDCAST RELATED TO WILDFIRE EVENTS PROVIDED BY DTN (INCLUDING, WITHOUT LIMITATION, ANY LIABILITY WITH RESPECT TO CUSTOMER’S ACTIONS IN RELATION TO WILDFIRE EVENTS) IS HEREBY EXCLUDED (WHETHER SUCH LIABILITY ARISES DUE TO BREACH OF CONTRACT, TORT, INVERSE CONDEMNATION, OR LIABILITIES PURSUANT TO ANY INDEMNITY IN THIS AGREEMENT OR FOR ANY OTHER REASON) SAVE IN THE EVENT THAT SUCH INACCURACY ARISES FROM DTN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
DTN Indemnification. Notwithstanding the indemnities set forth in Section 9.2 of the Terms of Service, DTN (including its directors, officers, employees, licensors, suppliers, agents, successors and assigns) has no obligation to defend, indemnify, and hold harmless Customer, or any unaffiliated third-party, from and against any Wildfire Claim. Customer acknowledges that it has no right to be indemnified against damages, costs, expenses, or liabilities resulting from any potential or actual Wildfire Event. If such a claim is or is likely to be made, DTN may, in its reasonable discretion: (i) obtain for Customer the right to continue to use the Services consistent with this Agreement and the applicable Order; (ii) modify the Services so they are non-infringing and in compliance with this Agreement and the applicable Order; or, if (i) or (ii) are not commercially feasible, (iii) terminate this Agreement or the applicable Order and refund to Customer any prepaid Fees for the affected Services, prorated to the number of months remaining in the then-current Term. THE FOREGOING STATES THE ENTIRE OBLIGATION OF DTN, ITS LICENSORS, SOURCES AND ITS SUPPLIERS, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY WILDFIRE CLAIM.
Limitations of Liability: Monetary Cap. SECTION 10.2 IS INCORPORATED BY REFERENCE AND SUPPLEMENTED AS FOLLOWS. WITH RESPECT TO WILDFIRE CLAIMS, DTN’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY MUST NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISING TO SUCH LIABILITY.
Survival. Any provisions in this Addendum which, by their express terms or nature and context are intended to survive termination or expiration of the Agreement, survive any such termination or expiration.
Miscellaneous. This Addendum modifies and supplements the Agreement solely to the extent expressly set forth herein, and the terms of this Addendum shall control in the event of any conflict or inconsistency with respect to the subject matter hereof. All other terms and conditions within the Agreement, including any amendments or addenda thereto, remain unchanged and in full force any effect.