HOMER End User License Agreement
HOMER End User License Agreement
Effective Date: 14 June 2020 (Archive of previous version)
This HOMER 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 all terms and conditions of this Agreement. By installing the Software, you represent that you have the authority to enter into this Agreement on behalf of the identified Licensee. If you do not agree to the terms and conditions of this Agreement, you must remove all copies of the Software from your computer and any other media on which you have made copies of the Software.
- 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. Therefore, for good and valuable consideration, the parties hereby agree to the following terms and conditions.
- Limited-Use License. Licensor hereby grants to Licensee during the License term, a nonexclusive, royalty-free, non-transferable, worldwide license to install and use the Software for Licensee’s internal purposes (the "Commercial Use License") on a single computer, except as set forth in Sections 2a and 2b below. Licensee also agrees to the restrictions in Sections 2 (c) through (h) below.
- If Licensee has purchased a License for a single user, Licensee may install a single copy of the Software on a second computer, for their own use and as a back-up, provided that only one copy of the Software is in use by Licensee at a time.
- If Licensee has purchased an Enterprise License, the Software may be used by the maximum number of simultaneous users specified in the receipt provided to Licensee.
- The term of the License and the type of License purchased will be stated on the receipt provided to Licensee. Unless the receipt specifies that the License term is perpetual, the Software will stop functioning upon expiration of the License term, unless the License has been renewed. Any attempt to circumvent expiration of the License term will be a violation of this License. In the event that such attempt causes the Software to cease functioning, Licensor will not be obligated to replace the Software or to refund any License fees.
- If the License is designated as an Academic License, use of the Software is restricted to educational and research purposes within an institution of learning or research during the License term specified in the receipt. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED. If Commercial Use occurs, Licensee will pay to Licensor an additional fee that is equivalent to the difference between the Academic License fee and the current advertised price of the Commercial License, plus a transfer fee that is equivalent to 10% of the total amount of fees paid by Licensee. Licensee will pay such additional fee within 15 days of Licensor’s request.
- If the License is designated as a Student License, the Software may only be used by a student enrolled in an institution of higher learning or vocational program who is pursuing an educational degree, and such use must be for purposes related to the educational program. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED. If Commercial Use occurs, Licensee will pay to Licensor an additional fee which is equivalent to the difference between the Student License fee and the current advertised price of the Commercial License, plus a transfer fee that is equivalent to 10% of the total amount of fees paid by Licensee. Licensee will pay such additional fee within 15 days of Licensor's request.
- If the License is designated as a Classroom License, use of the Software is restricted to computers that are used in 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 the computer(s) where the Software has been installed. COMMERCIAL USE OF THE SOFTWARE IS STRICTLY PROHIBITED. If Commercial Use occurs, Licensee will pay to Licensor an additional fee which is equivalent to the difference between the Classroom License fee and the current advertised price of the Commercial License, plus a transfer fee that is equivalent to 10% of the total amount of fees paid by Licensee. Licensee will pay such additional fee within 15 days of Licensor's request.
- If Licensee has downloaded a trial version of the Software ("Free Trial"), the trial version may be used solely for evaluation purposes in order for Licensee to determine if the Software is suitable for Licensee’s intended purposes. At the end of the trial period, the Software will cease to function and Licensee will 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 in such event, Licensee shall pay to Licensor an amount equal to the highest advertised price 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 of the Software is restricted to either (i) non-commercial educational purposes or (ii) non-commercial applications supporting energy access by a non-profit organization (delivery of energy for essential services in developing countries). Licensor will determine which of the two uses to select. Licensee will provide information to Licensor regarding how the Software will be used prior to downloading, installing or using the Software, and upon License renewal.
- Restrictions; Requirements. Licensee, will not (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, translate, reverse engineer, reverse assemble, decompile, disassemble, or otherwise attempt to derive the underlying ideas, source code, algorithms, structure or organization of any trade secrets, proprietary processes or configurations or proprietary software of LICENSOR used in or provided under this agreement; or (d) 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. 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. Licensee agrees that Licensor may use the HOMER file and data contained therein to (a) understand how the Software is used, (b) improve the Software and (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 of 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. All sales are final. Licensee is solely responsible for ensuring that it meets all hardware and software requirements for access to and use of the Software prior to purchase. Licensor will not be liable, nor will a refund be granted for Licensee’s inability to access and/or use the Software due to its failure to meet the hardware and software requirements.
- Ownership. Licensee acknowledges and agrees that (i) all rights, including but not limited to intellectual property rights, title and ownership in and to the Software, will at all times remain with Licensor and its 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 HEREIN, 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 AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES FOR ALL CLAIMS RELATED TO THE PRODUCTS OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY SHALL NOT EXCEED THE FEES PAID TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. ALL CLAIMS AGAINST LICENSOR MUST BE BROUGHT WITHIN NINETY (90) DAYS OF PURCHASE UNDER THE AGREEMENT. LICENSEE HEREBY WAIVES ALL RIGHTS TO A CLAIM IF NOT BROUGHT WITHIN THIS TIME PERIOD.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUE, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE, OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR THE PERFORMANCE OF ANY OF THE OBLIGATIONS HEREUNDER, EVEN IF ADVISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY TO ALL CLAIMS, WHETHER UNDER THE LAW OF CONTRACT, EQUITY, TORT, STRICT LIABILITY OR OTHERWISE.
- Indemnification. Licensee agrees to indemnify, defend and hold Licensor harmless from any demands, loss, liability, claims or expenses (including, but not limited to, reasonable attorney fees), made against Licensor by any third party due to or arising out of or in connection with Licensee’s purchase or use of the Software and/or breach of this agreement unless caused solely by Licensor’s gross negligence or intentional wrongdoing.
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 becomes unable 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. Licensee is responsible for ensuring compliance with this Termination Section by Licensee’s employees and independent contractors.
- Injunctive Relief. Licensee agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Licensor, entitling Licensor to injunctive relief in addition to all available legal remedies.
- Permitted Disclosures. Licensor reserves the right to disclose any information concerning Licensee’s purchase, including but not limited to, identity and payment method, to the extent required by law or judicial or government order.
- Compliance with Export Control Laws. The parties acknowledge and agree that the transfer of certain commodities and technical data is subject to United States laws and regulations controlling the export of such commodities and technical data, including all Export Administration Regulations of the United States Department of Commerce, the International Traffic in Arms Regulations of the United States Department of State and the executive orders, sanctions, programs and other rules administered by the Office of Foreign Assets Control of the United States Treasury Department. These laws and regulations, among other things, prohibit, or require a license for, the export of certain types of technical data to certain specified countries. Licensee hereby warrants that Licensee will comply with all United States laws and regulations and any other applicable laws and regulations that control the export of commodities and technical data, that Licensee will be solely responsible for any violation of such laws or regulations and that Licensee will defend and hold Licensor harmless in the event of any legal action of any nature brought about by such violation. While Licensor agrees to cooperate in trying to secure any license that the cognizant United States government agency deems necessary in connection with this Agreement, Licensor cannot guarantee that such licenses will be granted.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. Licensee may not assign this Agreement without the express written consent of Licensor, provided that Licensee may, without the prior consent of Licensor, assign all of its rights under the Agreement to (i) an Affiliate or (ii) a purchaser of all or substantially all of its stock or assets, upon written notice to Licensor. “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with, another entity where “control” means the power to direct or cause the direction of an entity’s affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise (and “controls” and “controlled” will be construed accordingly).
All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise any right or remedy provided in the Agreement shall not be deemed to be a waiver of any further right or remedy hereunder. In the event of any dispute or claim relating to this Agreement or the breach thereof.
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, provided, however, that any such arbitration shall be held in Chicago, Illinois and the arbitrator shall apply Illinois law.
Under no circumstances will any preprinted, additional or different terms or conditions in purchase orders or similar documents submitted by Licensee govern the services or licenses provided under this Agreement. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement. 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 contemporaneous agreements, negotiations, representations and proposals, written or oral. This Agreement may be modified or supplemented by the posting of such changes on Licensor’s website. Licensor will notify Licensee of these changes by email to the address under which Licensee registered when purchasing the Software.
HOMER Energy, LLC
1790 30th St., Suite 100
Boulder, CO 80301