HOMER End User License Agreement
This End User License Agreement (“Agreement”) is an agreement between you ("Licensee”) and HOMER Energy, LLC ("Licensor”) that sets forth Licensee’s rights and obligations with respect to the HOMER software and documentation ("Software”) that you are downloading and installing from Licensor’s website. In order to download, install, and use the Software, you must agree to the terms of this Agreement. By downloading or accepting and installing the Software, Licensee agrees to abide by and be legally bound by the terms and conditions of this Agreement, including the limited-use license, the limited warranty, and the limitation of liability. By installing the Software, you also represent that you have the authority to enter into this Agreement on behalf of the identified Licensee. If you do not agree, you should remove all copies of the Software from your computer or other media on which you have made copies of it.
- Background. Licensor owns and/or has the right to license the Software. Licensee desires to obtain a license to the Software on the terms and conditions set forth in this Agreement. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to the following.
- Limited-Use License. Licensor hereby grants Licensee a nonexclusive, royalty-free, non-transferable, worldwide license to install the Software for Licensee’s internal purposes (the “License”) on a single computer, except as noted in Sections 2a and 2b. Licensee also agrees to the following restrictions:
- If Licensee has purchased a License for a single user, then Licensee has the right to install a single copy of the Software on a second computer, for their own use and as a back-up, so long as only one copy of Software is in use by Licensee at a time.
- If Licensee has purchased an Enterprise License, then the Software may be used by the maximum number of simultaneous users specified in the receipt provided to Licensee.
- Length of the License term is stated on the receipt provided to Licensee. Unless the License term granted is perpetual, Licensee understands that unless renewed the Software will stop functioning after the specified period. Attempts to circumvent the term of the License will violate this License. In the event that this causes the Software to cease functioning, Licensor will not replace the Software nor refund any License fees.
- (d) If the License is designated as an Academic License, then use is restricted to educational and research purposes within an institution of learning or research for the term specified in the receipt. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED, and such use will cause Licensee to owe Licensor a License fee equivalent to the full value of the greatest difference in price between what fee was paid and what is currently advertised as the commercial License price, plus a transfer fee of 10% of the final total price. Licensee will pay such fee within 15 days of Licensor’s request.
- If the License is designated as a Student License, then use is restricted to use by a degree-seeking student enrolled in an institution of higher learning or vocational program, for purposes related to that educational program, for the term specified in the receipt. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED, and such use will cause Licensee to owe Licensor a License fee equivalent to the full value of the greatest difference in price between what fee was paid and what is currently advertised as the commercial License price, plus a transfer fee of 10% of the final total price. Licensee will pay such fee within 15 days of Licensor’s request.
- If the License is designated as a Classroom License, then use is restricted to computers that are part of teaching classrooms or laboratories. Any student or faculty associated with the license-holding institution may use the Software for non-commercial purposes, by logging on or gaining access to those computers. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED, and such use will cause Licensee to owe Licensor a License fee equivalent to the full value of the greatest difference in price between what fee was paid and what is currently advertised as the commercial License price, plus a transfer fee of 10% of the final total price. Licensee will pay such fee within 15 days of Licensor’s request.
- If Licensee has downloaded a trial version (“Free Trial”), then such version may be used for evaluation purposes only, so that Licensee may determine if Software is suitable for its intended purposes. At the end of the trial period, the Software will cease to function. Licensee must either remove the Software and destroy any copies or purchase a License for its continued use. Any attempt to circumvent the limited term of the Free Trial will be a violation of this License and cause Licensee to owe Licensor an amount equal to the highest advertised cost of the Software times a multiplier of six (6). Licensee will pay such fee within 15 days of Licensor’s request.
- If Licensee has downloaded the free HOMER Legacy software (HOMER 2.68), use is restricted to either non-commercial educational purposes or non-commercial applications supporting energy access by a non-profit organization (delivery of energy for essential services in developing countries). Identification of these uses is in Licensor’s sole discretion. In addition, Licensee agrees to provide information on how such Software will be used prior to downloading, installing, or using the Software, and upon License renewal to provide information on how the Software was used.
- Restrictions; Requirements. The License does not include the right to, and Licensee covenants and agrees not to, (a) disclose all or any portion of the Software to any third party; (b) sell, license, sublicense, distribute or otherwise transfer all or any portion of the Software to any third party; or (c) modify, decompile, disassemble, or create derivative works from, all or any portion of the Software. Licensee will not remove, distort, relocate, resize, or otherwise modify in any way any copyright, trademark or other proprietary notices that appear in the Software.
- Licensee Data. Notwithstanding anything to the contrary in any NDA or confidentiality agreement between the parties, unless Licensee has purchased a Proprietary Enterprise License, use of the “Calculate” function in the Software may cause Licensee’s HOMER file to be sent to Licensor over the Internet using Hypertext Transfer Protocol Secure (HTTPS) technology and stored on a secure server where Licensor may use it to: (a) understand how the Software is used, (b) improve the Software, and/or (c) aggregate the data and information in it, along with other information from Licensee’s user profile, to analyze market trends. In no event will any personally identifiable information be included in any aggregate data, nor will any Licensee-specific solar, wind or imported or measured electric load data in such file be reused, repackaged, or shared with any third parties. Licensor may make aggregate, non-identifiable information from Licensee’s file (including but not limited to, type and sizes or systems, estimated costs, and project location to the level of country or region, but not to include any specific data) available to third parties who may use it to understand the general microgrid market.
- Fees; Taxes. Licensee shall pay Licensor any required License fee prior to downloading, installing or using the Software. Licensee shall be liable for, timely pay, and indemnify and hold harmless Licensor from and against, all applicable taxes and duties of any kind (collectively, “Taxes”) imposed by any taxing authority that are attributable to Licensee’s use of the Software.
- Ownership. Licensee acknowledges that (i) all rights, including but not limited to intellectual property rights, title, ownership and interest in and to the Software will at all times remain with Licensor and any third party licensors, and (ii) Licensee has no rights in the Software except those expressly granted by this Agreement. Licensee will take reasonable steps to protect the Software from any use that is not specifically authorized by this Agreement.
- Limited Warranty.
- Licensor warrants that (i) that it owns or has the right to license Software to Licensee hereunder, and (ii) it has not granted any exclusive rights with respect to the Software or any part thereof to any third party or otherwise granted any rights that are inconsistent with the rights granted hereunder.
- EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7(a), THE SOFTWARE IS PROVIDED TO LICENSEE STRICTLY ON AN “AS IS” BASIS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ORIGINALITY, RESULTS TO BE DERIVED FROM THE SOFTWARE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THIS AGREEMENT OR THE SOFTWARE. LICENSOR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE.
- Limitation of Liability. The parties agree to be responsible for their respective use of the Software. Neither party shall be liable to each other or to a third party for any loss or damage claimed to have resulted from the use, marketing, operation or performance of the Software or related in any way to its acquisition, regardless of the form of action.
- Licensor may terminate the License to the Software upon the occurrence of any of the following events: (i) Licensee breaches or fails to observe any of its obligations under this Agreement, (ii) Licensee admits in writing its inability to pay its debts generally as they become due, or executes an assignment or similar document for the benefit of creditors, or (iii) the appointment of a receiver, trustee in bankruptcy or similar officer for Licensee’s equity or assets; and such event(s) is/are not remedied to the satisfaction of Licensor within thirty (30) days after Licensor has sent written notice to Licensee. Termination is not Licensor’s exclusive remedy and no such termination shall adversely affect any claim, right or action that Licensor may have for damages or otherwise against Licensee regarding its breach or failure to observe its obligations to Licensor.
- Upon notice of such termination, Licensee will immediately remove or permanently delete all copies of the Software and documentation from all operating systems and computers and, if requested by Licensor, shall certify in writing as to the removal or return of the same. All confidentiality and non-disclosure obligations herein shall survive termination or expiration of this Agreement. It is expressly understood by both parties that Licensee is responsible for the compliance with this Section 9(b) by its employees and independent contractors.
- This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that any attempt by Licensee to assign this Agreement shall be void without the express written prior consent of Licensor which may be withheld in its sole discretion, except that Licensee may assign this Agreement upon written notice to Licensor to any affiliate of Licensee and in connection with any sale by Licensee of substantially all of its assets relating to the Software.
- All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be deemed a waiver of any further right or remedy hereunder.
- This Agreement shall be subject to, governed by, and construed in accordance with the laws of the State of Colorado without regard to any of its conflict of laws provisions that would cause the laws of another jurisdiction to apply. Any action or proceeding relating to this Agreement must be brought in a federal or state court in Denver or Boulder County, Colorado, United States of America and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its costs, expenses and reasonable attorneys’ fees, in addition to any other relief it may receive.
- The invalidity of any provision of this Agreement shall not affect the validity and binding effect of any other provision.
- This Agreement constitutes the entire agreement between the parties on the subject hereof and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral.
- This Agreement may be modified, supplemented, or deviated from by posting changes on Licensor’s website. Licensor will make every effort to notify Licensee of these changes via email to the address under which Licensee registered the Software.
HOMER Energy, LLC
1790 30th St., Suite 100
Boulder, CO 80301