Terms and Conditions
TERMS AND CONDITIONS FOR HOMER ENGINEER HOURS
These Terms and Conditions For Homer Engineer Hours ("Terms") are entered into by and between HOMER Energy ("UL") and the person or entity which has completed the electronic signature process set out below ("Client") and are effective as of the date of Client's electronic signature. These Terms govern Client's access to and use of the Services.
SERVICES. Client desires to engage UL to provide support for HOMER modeling and projects through support services known as HOMER Engineer Hours, which include HOMER model runs and analysis, support and assistance with model runs, personalized training or other services that may be required to complete a HOMER model analysis Hours ("Services"). Client will request the Services through UL's HOMER support system accessible at users.homerenergy.com, (the "Site") If necessary, HOMER engineers will assist the Client to further identify and frame the assistance needed by Client. The Services will be provided within the time period set forth at the Site. It is understood by the parties that UL is an independent contractor with respect to Client, and not an employee, partner, or agent of Client.
PAYMENT TERMS. A nonrefundable pre-paid deposit is due prior to commencement of the Services and such pre-paid deposit shall be applied to the Services. The Services will terminate on the earlier of (i) the date on which all of the pre-paid fees have been applied to the Services, or (ii) 12 months from date the pre-paid deposit payment. After termination, a new pre-paid deposit will be required in order to obtain Services. All payments will be in US Dollars.
CONFIDENTIALITY. Client and UL 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, "Confidential Information"), which are valuable, special and unique assets of Client or UL, as the case may be, and the parties desire to protect such Information from improper use and disclosure. UL and Client agree to treat such Confidential 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 Confidential Information to any third party without the prior consent of the disclosing party. Such Confidential Information must be marked as Confidential or Proprietary. If the Confidential 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. Such use and non-disclosure obligations will not apply to information that (a) was already rightfully known to Recipient prior to the disclosing party disclosing it; (b) is in or has entered the public domain through no breach of these terms or other wrongful act of the receiving party; (c) has been rightfully received from a third party not under obligation of confidentiality; (d) has been approved for release by disclosing party's written authorization; (e) is required to be disclosed by law; or (f) was independently developed by the receiving party, as evidenced by documentation, without reference to or reliance on the disclosing party's Confidential Information.
USE OF DATA. CClient hereby grants to UL a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use aggregated, anonymized data derived from Client data or Client Confidential Information, including information pertaining to Client's use of the Services (the "Aggregated Data") for UL's business purposes, including the provision of products and services to UL's other customers and does not include (directly or by inference) any information identifying Client or any identifiable individual and does not include Client data or Client Confidential Information in a non-aggregated, identifiable format. The Aggregated Data will not be considered Client data or Client Confidential Information.
DISCLAIMER. UL shall perform the Services in a professional manner. Except for the foregoing, UL 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.
LIMITATION OF LIABILITY. IN NO EVENT SHALL UL 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. THE AGGREGATE LIABILITY OF UL TO CLIENT FOR ALL CLAIMS RELATED TO THE SERVICES AND THESE TERMS, INCLUDNG ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE THE AMOUNT OF FEES PAID FOR THE SERVICES PROVIDED UNDER THESE TERMS.
INTELLECTUAL PROPERTY. Client owns the client data it provides to UL in conjunction with the Services and associated IP Rights. Client owns the factual results of any analysis of Client Data performed under the Services. Client grants UL a non-exclusive, worldwide, irrevocable, royalty-free right to use Client data to perform the Services. The IP Rights in and to the Services and Service Content are and shall remain the property of UL and its licensors. "IP Rights" means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know how, trade-marks, designs, models, design rights, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing together with all renewals, extensions, continuations, divisions, reissues, re examinations and substitutions. "Service Content" means the computer code, operating instructions, graphics, designs, proprietary scripts, underlying technology, third party content, Information and/or other material (whether In written, graphical, or other form) comprised In the Services.
ENTIRE AGREEMENT. The request for Services and these Terms comprise 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.
SEVERABILITY. 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.
ASSIGNMENT. These Terms may not be assigned or transferred by Client without UL's prior written consent. Any transfer or assignment in violation of this Section 11 shall be null and void.
ELECTRONIC SIGNATURE. This Agreement shall be executed and delivered by Client's electronic acceptance online, which constitutes Client's signature. UL's electronically stored copy of this Agreement, as signed by Client shall be the true, complete, valid, authentic and enforceable copy of this Agreement. By accepting this Agreement and clicking "Accept", Client agrees that this is a legally binding electronic agreement which Client fully understands the terms of and is authorized by Client or Client's company to enter into for the purchase of Services.