Forensic Weather Consultants Affidavit Referenced in Motion for Summary Judgement Decision Dismissing CasePosted: Wednesday, 13 January 2021 at 10:28 am - Find out more...
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2400 Western Avenue, Guilderland, N.Y. 12084
(518) 862-1800 (Phone)
Tax ID: 26-4625570
1. The Agreement. This Retainer Agreement (“Agreement”) sets forth the terms and conditions under which Forensic Weather Consultants, LLC (“us”, “we” or the “Company”) shall provide weather consulting services to you, the client (“you” or “Client”) in connection with Client’s investigation and/or services. The parties’ engagement shall commence upon the Company’s receipt of the agreed terms and completed Weather Request Form from the Client. An initial retainer fee in the amount of One Thousand, Five Hundred Dollars ($1500.00) is due upon retention. The agreement for this case shall continue until terminated by either party hereto.
2. Services. Company agrees to perform certain services (collectively, the “Services”) pursuant to the terms set forth herein.
A. Weather Records, In-Depth Analysis and Consultation:
Company shall gather various weather records, reports, and data from stations near and/or surrounding the Location of Interest (aka the “Incident Location”) as designated in the Weather Request Form. Company shall determine the weather conditions (and ground conditions if pertinent) that existed at the Location of Interest leading up to and including the day/time period set forth by Client. The data shall be obtained from a variety of sources including, but not limited to, daily weather observations, hourly surface observations, Color Doppler Radar images zoomed in over the Location of Interest, cooperative observer station reports, National Weather Service bulletins, advisories, warnings, forecasts, and various other pertinent records, programs, reports, and data. Unless specifically requested by Client, all records will be non-certified records. Company may also provide Client, upon request, a detailed written expert report of the Company’s findings for the Location of Interest. Weather records and data will be delivered to Client electronically. Upon conclusion of the initial analysis, Company will contact the Client to discuss our findings verbally. In most cases, the typical turnaround time for the services above (section 2A) is Ten (10) to Fifteen (15) Business Days after the Retainer Agreement is received. If rush service is needed, see section 2D below.
B. Detailed Written Report:
If requested by Client, Company shall prepare a detailed typed expert report summarizing Company’s findings and conclusions. The written report will vary in length depending on the type of case and amount of information. The report will include a detailed analysis setting forth, in Company’s expert opinion, the weather (and ground conditions if pertinent) at the Location of Interest leading up to and including the applicable day/time period, including the facts, figures and other conclusions and how such weather conditions relate to the incident/alleged incident in question.
C. Certified Weather Reports:
If requested by Client, Company shall order and provide certified weather records. Certified weather records shall be certified by the applicable agency or agencies of the federal government of the United States and other entities. Client acknowledges that certified weather records cost an additional fee(s) beyond the Fees, as hereinafter defined, and that such additional fees for certified weather records shall be paid by Client together with the Fees. The cost for certified records varies from case to case depending on various factors, including volume, the number of days needed, and the types of data.
D. Rush and Super-Rush Service Basis:
If requested by Client, Company shall use its best commercial efforts to provide the Services to Client on a Rush service basis (“Rush Service Basis”). Any Services provided on a Rush Service Basis shall be billed at a rate equal to One and One-Half times the meteorologist’s Hourly Rate. Company can provide its Services requested on a Rush Service Basis to Client within Five (5) to Nine (9) business days provided, however, Client acknowledges and agrees that the time periods set forth in this Section 2(d) are only estimates made by Company and do not constitute a representation or warranty of any kind, nor shall Company’s failure to render the Services to Client within such time periods constitute a material breach. If requested by Client, Company shall use its best commercial efforts to provide the Services to Client on a Super-Rush service basis (“Super-Rush Service Basis”). Any Services provided on a Super-Rush Service Basis shall be billed at a rate equal to Two times the meteorologist’s Hourly Rate. Company can provide its Services requested on a Super-Rush Service Basis to Client within One (1) to Four (4) full business days provided, however, Client acknowledges and agrees that the time periods set forth in this Section 2(d) are only estimates made by Company and do not constitute a representation or warranty of any kind, nor shall Company’s failure to render the Services to Client within such time periods constitute a material breach.
E. Affidavits, Document Review, Additional Consultations and Services:
Upon request by Client, Company shall review, prepare, and provide notarized affidavits to Client based upon the information obtained by Company in accordance with rendering the Services. Company will also review other documents and materials at Client’s request including, but not limited to, attorney-prepared documentation, photographs, affidavits, witness statements, EBT’s and deposition transcripts. Phone consultations and/or additional consulting shall be billable in 10-minute increments at Company’s Rates outlined in this agreement.
F. Expert Testimony and Depositions:
Upon request by Client, Company may also provide expert testimony or deposition services as part of the Services. Any Services provided by the Company in this paragraph shall be pursuant to the requirements and fees set forth in section 7(c). Reservation of dates for Expert Testimony and/or Depositions will only commence upon receipt of the upfront testimony or deposition deposit.
3. Acceptance of Electronic Agreement. The Parties hereby acknowledge and agree that each request electronically submitted by Client using Company’s website is a legally binding agreement, and that the Parties agree to be bound by all of the terms and conditions set forth therein.
4. Commencement of Services. Notwithstanding anything herein to the contrary, the execution of this Agreement shall in no way obligate Company to provide any Services to Client unless and until Client electronically submits a Retainer Agreement and Agrees to Terms using Company’s website(s) in accordance with the terms and conditions set forth herein, and until Company accepts the assignment upon completion of a conflict check.
5. Term. This Agreement will commence when the “Company” accepts the assignment from “Client” and will continue until terminated by a Party in accordance herewith.
6. Termination. Either Party may terminate this Agreement at any time without cause by giving the other Party at least ten (10) days prior written notice. Upon termination, all duties, responsibilities, and other obligations of the Parties set forth herein shall terminate; provided, however, that any Fees and all other costs due to Company and then outstanding shall be paid by Client within ten (10) days of the date of the termination notice. Upon termination of this Agreement, Company shall return or destroy all documents, statements, records, materials, and similar documents to Client in their possession, if any, within fifteen (15) days of the date of the termination notice.
7. Hourly Rate; Fees.
A. Hourly Rate:
Unless Client elects for the Services to be provided by Company on a Rush Service or Super Rush Service Basis as stated in Section 2(D), Client agrees to pay Company certain fees (the “Fees”) for the Services at an hourly rate of Two-Hundred Fifty Dollars ($250.00) per hour (the “Hourly Rate”), which shall either be billed in 10-minute increments against the initial retainer fee, retainer fee replenishment, or billed to the Client via an Invoice. Client acknowledges and agrees that the Fees may not include all costs for Company providing the Services; additional costs may be charged for records, certified weather records and other Services and/or data so requested by Client. Company agrees to refund any unused portion of the retainer fee.
B. Invoices; Payment:
Unless otherwise indicated by the Company, an initial retainer fee of One Thousand, Five-Hundred Dollars ($1500.00) is required to open a new file. This retainer fee can be paid by credit card on the company website(s) or by phone, or by sending a check to the Company’s office. Upon completion of the Services set forth in each request, Company shall provide Client with an invoice for all Services provided. The invoice shall set forth the Fees owed plus all other expenses incurred. The Fees shall be paid by Client by check, credit card or other immediately available funds within thirty (30) days of receipt by Client. All credit card payments are subject to credit card fees that we are assessed.
C. Expert Testimony and Depositions: Live trial testimony, videotaped testimony or deposition testimony must be made more than 7 business days prior to a requested testimony or deposition date.
The following are the fees for Live Trial or Videotaped Testimony. These fees also apply for Depositions More than 60 Miles from Zip Code 12084:
$3000.00** per day
**A short-notice fee of $1000.00 will be required in addition to the rates above if we are notified or requested for trial 7 (Seven) days or less before our anticipated testimony date.
The Expert Testimony Fee per Day Includes:
1. File, data, record, and trial preparation internally prior to the day of testimony.
2. Preparation and review of our weather records, notes, reports, and court filings.
3. Blocking off 1 (ONE) business day for testimony (8:00 a.m. to 5:00 p.m.).
4. Our availability in court for the entire day on the requested testimony date.
5. Travel time from portal to portal on the day of testimony.
6. Travel expenses such as gas, tolls, parking, rental car, or train tickets.
7. Hotel accommodations, if necessary, for one night.
Note: This fee does not include airline tickets. If airline tickets are required, then this charge will be invoiced to the client.
If the case settles more than 48 hours prior to the testimony date, then a settlement fee of $1500.00 will be kept by Forensic Weather Consultants in addition to any non-refundable fees or expenses that were incurred. If the case settles or the testimony is cancelled less than 48 hours from the testimony date, then the full testimony fee will be kept by Forensic Weather Consultants in addition to any non-refundable fees or expenses that were incurred.
Depositions less than 60 Miles from Zip Code 12084:
***If the deposition is cancelled or postponed 2 (TWO) business days or less from the scheduled deposition date, then the full deposit will be owed to Forensic Weather Consultants as a cancellation in addition to any non-refundable travel expenses.
8. Representations and Warranties of Client. Client represents and warrants to Company that:
(a) Client has the full legal right, power, and authority to enter into this Agreement and to fully perform and satisfy all of its obligations hereunder; and
(b) This Agreement, upon execution, shall constitute a valid and binding agreement of Client enforceable against Client in accordance with its terms.
9. Notices. Any notice, request, demand, waiver, consent, or other communication which is required or permitted hereunder shall be in writing and shall be deemed given only if sent by registered or certified mail or by Federal Express or other comparable overnight mail service, postage prepaid, to the respective address of the Parties set forth above.
10. Indemnification by Client. Client shall indemnify, defend, and hold harmless Company and its members, managers, officers, agents, employees, and affiliates from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and disbursements, arising out of any breach or, in connection with a third-party claim, alleged breach of any representation, warranty, covenant or agreement made by Company herein which claim is reduced to final judgment or settled with consent.
11. Disclaimer; Limitation of Liability. COMPANY EXPRESSLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES, ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT. COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES. IN ANY EVENT, THE LIABILITY OF COMPANY TO CLIENT FOR ANY REASONS AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS.
12. Confidentiality. Each Party agrees to keep secret and retain in the strictest confidence and shall not disclose to any third party (without the prior written consent of the other Party or except as required by law) and shall not use or exploit, or authorize any third party to use or exploit, in any manner or medium: (a) any ideas or concepts related to the Services provided hereunder; (b) the terms of this Agreement, or (c) any information which a Party may provide to the other Party or of which the other Party may become aware in connection with the businesses of a Party or any of its affiliated companies.
(a) Independent Contractor: Client acknowledges that this Agreement constitutes an agreement whereby Client is engaging Company as an independent contractor and not an employee, and in no event shall this Agreement be construed to create any employment, agency or joint venture relationship between the Parties.
(b) Assignment: Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party.
(c) Entire Agreement: This Agreement may not be modified or amended except in writing signed by the Parties hereto. This Agreement incorporated herein contain the full understanding of the Parties with respect to the subject matter hereof and supersede any and all previous agreements between the Parties.
(d) Enforceability: The Parties acknowledge and agree that all provisions of this Agreement are reasonable and valid in all respects and that if it is determined that any provision hereof is invalid or unenforceable, the remainder of the provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portions.
(e) Choice of Law and Forum: This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable without regard to principles of conflicts of law. Each Party hereby consents to the jurisdiction of any state or federal court located within the County of Albany, State of New York or the Northern District of New York.
(f) Client’s Remedies: Client agrees that its rights and remedies in the event of any alleged breach of this Agreement by Company will be limited to the right, if any, to recover money damages in an action at law pursuant to the terms of this Agreement, and in no event will Client be entitled by reason of any such breach to seek injunctive or other equitable relief.
(g) Counterparts: This Agreement may be executed in counterpart signatures all of which, when taken together, shall be deemed to constitute one and the same instrument.
(h) Survival: All provisions of this Agreement relating to warranties, confidentiality, choice of law and forum, and indemnification shall survive the expiration or earlier termination of this Agreement.
The “Client” completing this Agreement is a duly authorized representative of their company, business or corporation and has the authority to execute same effective the date these terms are accepted.
14. Use of Information, Weather Records, or Reports. “Client” explicitly agrees not to use or reference any of the records, images, data, findings, tables, conclusions, or any report that was provided by Forensic Weather Consultants for any other case, claim or incident location other than this specific incident. Use of this information for any other claim or case is expressly prohibited.
15. Daubert or Frye Challenge. In the very unlikely circumstance where a challenge to the Daubert Standard or Frye is made against any expert from the Company, you agree to immediately notify the Company and the expert witness within One (1) Business Day of receipt of the motion and assist the Company and Expert with drafting and providing a response.
BY CLICKING “I ACCEPT”, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND THAT YOU AGREE TO BE BOUND BY THE SAME. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE WEBSITE AND ITS PRODUCTS. UNAUTHORIZED USE OF THE WEBSITES MAY GIVE RISE TO LEGAL ACTION.
You acknowledge and agree that ordering this product does not permit you to list or disclose Forensic Weather Consultants, LLC or any of its employees as experts in any matter. You further acknowledge and understand that a Retainer Agreement must be submitted and accepted by the Company in order to “retain” Forensic Weather Consultants, LLC or any of its employees. You may access and use the WEBSITES for the purpose of gathering meteorological data, automated reports and information, including, but not limited to, data concerning historical weather conditions, severe weather reports and data, hail reports, hail data, hail swaths, wind data, wind reports, storm reports, storm surges, wind speeds, wind gusts, barometric pressures (collectively, the “Data”). You agree not to access or use the WEBSITES for any purpose that is prohibited by these Terms and Conditions or that is prohibited by any and all applicable federal, state and/or international laws, statutes, ordinances, rules, regulations and codes. The Company retains the right, in its sole and absolute discretion, to deny service or use of the WEBSITES to you, or to anyone, at any time and for any reason. The WEBSITES and the Services are proprietary to the Company and, as owner of the WEBSITES and the Services, the Company reserves the exclusive right to modify and/or terminate the WEBSITES and the Services at any time. By using the WEBSITES and accepting these Terms and Conditions, the Company grants you a limited, personal, nontransferable, nonexclusive, revocable license to use the WEBSITES and the Services pursuant to these Terms and Conditions and to any additional policies that may be set forth by the Company from time to time.
You acknowledge that the Data you order/collect for a particular address is unique and that such Data and report is inapplicable to any other address or location. Use of the Report and Data for any other address or location is expressly prohibited. The Company is not the creator of the incoming raw Data and has no control over services and/or data created or controlled by third parties. The Data you obtain will be obtained “as is” and the Company is therefore not responsible for the availability, accuracy or content of the Data sought by you through the WEBSITES. The data and report you receive from our WEBSITES are to be used for informational purposes only and has not been independently quality-controlled for any specific claim, case or matter. Should you need our services for litigation, trial testimony, depositions or other disputes, you understand and agree that the Company will need to prepare a more in-depth, full forensic report which will include additional analysis, details and methodology that are not included in these reports. These additional services will require official retention and additional fees as set forth in our retainer agreement that can be provided. You acknowledge that ordering, receiving and obtaining these online reports and/or maps from the Company does not constitute retention of Forensic Weather Consultants, LLC or its employees or members in any way. By using the WEBSITES, you acknowledge and agree that the Company is not responsible or liable for any damage or loss as a result of your reliance on the Data or any content or services provided by third parties. The Company and the WEBSITES shall be excused from performance to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from weather conditions or other elements of nature or acts of God, error or disruption to major computer hardware or networks or software failures, Internet unavailability, or other force majeure causes beyond the reasonable control of the Company.
The WEBSITES contains copyrighted material and other proprietary information including, but not limited to, text, software, photos, video, graphics, music and sound and the entire contents of the WEBSITES are protected by copyright, trademark, and other intellectual property laws of the United States. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works or in any way exploit any part of the WEBSITES or the Services, in whole or in part. If downloading, copying, redistribution, retransmission or publication of the Data or any other copyrighted material is permitted under applicable law, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend or copyright notice. The Company does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting therefrom.
All payments to the Company for use of the Services offered through the WEBSITES are processed using an automated payment system. You will be charged for your use of the Services on a per-search basis. Payment to the Company will not be accepted via any means other than the foregoing, unless otherwise earlier consented to by the Company. By entering your credit card or other online payment information, you affirmatively agree that you are an authorized user of such credit card or online payment account and that the information you enter is true and accurate. You expressly authorize the Company to charge the amount requested to your credit card and/or debit such amount from your online payment account. If for any reason a charge or payment is declined or reversed, you agree to immediately pay the Company a reasonable service charge and to reimburse the Company for all reasonable costs of collection. If credit card payment is not made at the time of purchase, you agree to pay the invoice for each product within 30 days of receipt of the invoice.
THE COMPANY, AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES AND AGENTS, EXPRESSLY DISCLAIM, AND YOU HEREBY EXPRESSLY WAIVE, ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES RELATING TO BUSINESS PROFITS OR LOSSES, INTERNET SERVICE RELIABILITY, OR THE ACCURACY, INTEGRITY, RELIABILITY OR COMPLETENESS OF ANY OF THE DATA OR CONTENT PUBLISHED OR MADE ACCESSIBLE ON THE WEBSITES OR THROUGH THE SERVICES OR ANY SEARCHES PERFORMED BY YOU ON THE WEBSITES SEEKING DATA. THE COMPANY DOES NOT WARRANT THAT THE WEBSITES OR FUNCTIONS CONTAINED IN THE WEBSITES WILL OPERATE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITES IS FREE OF VIRUSES OR OTHER HARMFUL ITEMS EITHER IN OR OUT OF THE CONTROL OF THE COMPANY. IF YOUR USE OF THE WEBSITES RESULTS IN THE NEED FOR SERVICING OR REPLACEMENT OF ANY EQUIPMENT USED BY YOU, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE SAME OR ANY COSTS ASSOCIATED THERETO. IN NO EVENT SHALL THE COMPANY, OR ANY OF ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU, AND YOU HEREBY RELEASE ALL OF THE AFOREMENTIONED FOR, ANY AND ALL LOST PROFITS OR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITES, THE SERVICES OR THE DATA, OR ANY BREACH OF THESE TERMS AND CONDITIONS.
To the fullest extent permitted by law, you shall indemnify, defend and hold harmless the Company, and its members, managers, officers, employees and agents, from and against all claims, damages, loss, liability or expense of any kind, which is in any way connected with the Services, the WEBSITES and the Data, to the extent such arises or results from any negligent act, omission, breach of any duty or obligation, on the part of you or the breach by you of any covenant, representation or warranty contained in these Terms and Conditions. This indemnification includes, but is not limited to, any claims, damages, loss, liability or expense of any kind, including attorneys’ fees, which is in any way connected with the Services and the WEBSITES, and/or which is based upon a breach of any duty or obligation on your part, or any of your agents’ part, even if no negligent act is found to have occurred.
These Terms and Conditions may be changed from time to time in the Company’s sole discretion and constitute the entire agreement and understanding between you and the Company with respect to the subject matter hereof. These Terms and Conditions supersede all prior or contemporaneous communications and proposals, whether oral or written, between you and the Company with respect to such subject matter. You irrevocably consent that any action or proceeding relating hereto shall be brought in any state or federal court of general jurisdiction in Albany, New York. If any provision of these Terms and Conditions become or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, the same shall continue in full force and effect without such provision. The validity, interpretation, construction and performance of these Terms and Conditions shall be governed by the laws of the State of New York without giving effect to choice of law or conflict of laws rules and principles. If you or the Company commence an action for relief against the other, legal, equitable, declaratory or otherwise, arising out of or in connection hereto, including, without limitation, any action for the recovery of monies, the non-prevailing party shall pay the prevailing party its reasonable costs, fees and expenses incurred in connection with and in preparation for said action including, without limitation, court costs, reasonable attorneys’ fees, accountants and other experts, disbursements and interest. You agree that, in the event of a breach or alleged breach of these Terms and Conditions, the Company may not have an adequate remedy at law, including monetary damages, and that the Company may, in addition to other available rights and remedies, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violation of, any of the provisions hereof, and may do so without posting a bond or other security. Failure by the Company to enforce any of the provisions hereof shall not constitute a waiver or limit any of the Company’s rights hereunder.