Terms and Conditions
Premium Support Services
Terms and Conditions
- PAYMENT TERMS
Client desires to engage HOMER Energy to provide premium support services. A nonrefundable pre-paid deposit is due prior to commencement of such services. Premium support will cease when this deposit has been used up, until a new pre-paid deposit has been made. All payments will be in US Dollars ($).
RELATIONSHIP OF PARTIES
It is understood by the parties that HOMER Energy is an independent contractor with respect to Client, and not an employee, partner, or agent of Client.
Client will request premium support services through HOMER Energy’s web-based system and if necessary, HOMER Energy personnel will assist Client to further identify and frame the assistance Client needs (the “Services”). The Services will be provided in the time frame set forth in the HOMER Energy website.
Client and HOMER Energy agree that during the course of providing the Services, each (a receiving party) may receive nonpublic information from or learn information about the other party (the disclosing party), including data, business affairs; future plans; financial and technical information and other proprietary information (collectively, “Information”), which are valuable, special and unique assets of Client or HOMER Energy, as the case may be, and the parties desire to protect such Information from improper use and disclosure. HOMER Energy and Client agree to treat such Information as confidential and that they will not, at any time or in any manner, (i) use the Information for any purpose other than in the performance of the Services or (ii) either directly or indirectly, divulge, disclose, or communicate in any manner any Information to any third party without the prior consent of the disclosing party. Such Information must be marked as Confidential or Proprietary. If the Information was provided orally, it must be followed within 10 business days with a written notice identifying it as Confidential or Proprietary. These confidentiality and non-use obligations will remain in full force and effect after Services have been completed. It is, however, understood that neither party will have obligations under this Section 1.d with respect to any Information that is
- already known by the receiving party (as shown by written documentation) prior to the date of Client’s request for Services,
- released from its confidential status by the prior written consent of the disclosing party, or
- becomes common knowledge within the industry after the date of disclosure to the receiving party and through no fault of the receiving party.
- USE OF DATA
Notwithstanding Section 1.d above, Client agrees and acknowledges that if the Services include any analysis of Client’s data using the HOMER Pro software, such data will be automatically included in HOMER Energy’s project database. HOMER Energy may use the database to make aggregate, non-identifiable information (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 Client data) available to third parties who may use it to understand the general microgrid market. In no event will any personally identifiable information of Client be included in any aggregate data, nor will any Client-specific solar, wind or imported or measured electric load data be reused, repackaged, or shared with any third parties.
HOMER Energy shall perform the Services in a professional manner. Except for the foregoing, HOMER ENERGY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Client shall be solely responsible for its use (or non-use) of the Services in the manner it deems best.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL HOMER ENERGY BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR REVENUES FOR ANY CLAIM RELATING TO OR ARISING UNDER THESE TERMS AND CONDITIONS OR FOR ANY BREACH, REPUDIATION OR TERMINATION OF THESE TERMS AND CONDITIONS, EVEN IF HOMER ENERGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOMER ENERGY SHALL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES EXCEEDING THE AMOUNT OF FEES PAID FOR THE RELEVANT SERVICES BUT IN NO EVENT MORE THAN $2,500. This limitation of liability is material to HOMER Energy’s agreement to provide the Services to Client and HOMER Energy would not have done so without this limitation.
- INTELLECTUAL PROPERTY
- Client shall own the data it provides to HOMER Energy and the factual results of any analysis using that data which is included in the Services. Client grants HOMER Energy the non-exclusive, worldwide, irrevocable, royalty-free right to use the data as set forth in Section 1.e.
- HOMER Energy owns the HOMER Software and all updates and modifications.
- ENTIRE AGREEMENT
The request for Services, these Terms and Conditions and the associated HOMER Energy website contain the entire agreement of the parties as to the Services and there are no other promises or conditions in any other agreement whether oral or written.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of these Terms and Conditions is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
- APPLICABLE LAW
These Terms and Conditions shall be governed by 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 these Terms and Conditions 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 these Terms and Conditions, the prevailing party will be entitled to receive its costs, expenses and reasonable attorneys’ fees, in addition to any other relief it may receive.