Software Licensing Agreement for EA-PSM

THIS SOFTWARE LICENSING AGREEMENT (THE “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN ENERGY ADVICE, (“EA-PSM”) AND YOU AND/OR THE ENTITY YOU REPRESENT (“you” or “Licensee”). ENERGY ADVICE IS WILLING TO PROVIDE YOU A LICENSE TO CERTAIN SOFTWARE AND MODELS (EACH DEFINED BELOW) ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

BY COPYING, INSTALLING, OR OTHERWISE USING THE SOFTWARE AND/OR MODELS, YOU REPRESENT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SOFTWARE.

Any agreement that specifically refers by name to this Agreement and states that such agreement overrides this Agreement shall control. For all other agreements, (i) in the event you have previously entered into a separate written agreement with Energy advice, this Agreement shall control to the extent that there are conflicting terms, or (ii) In the event you enter into a separate written agreement with Energy advice after entering this Agreement, then to the extent the terms of the separate agreement conflict with the terms of this Agreement, then the separate agreement shall control.

 

Definition

  1. Software. “Software” shall mean all materials and information with which this license is provided including, but not limited to, executables, dynamic-link libraries, static libraries, object code, byte code, source code, code, files, scripts, sample models, model source files, libraries, Documentation, upgrades, updates, and additions to such information and/or materials, and Activation Key.
  2. Model(s). The “Model” or “Models” means a simulation model created using the Software.
  3. Model Output. “Model Output” means the output and data that is derived from running a Model.
  4. “Licensee” is the individual or entity entering into this Agreement with Energy advice for the right and license to use the Software limited to the Permitted Number (as defined below).
  5. Countries of Use. “Countries of Use” refer to the list of countries specified in the applicable invoice, or another official document approved by Energy advice
  6. Authorized Licensee User(s). An “Authorized Licensee User” is any individual employed by Licensee within a business unit, internal division or group specified in the applicable invoice or purchase order and primarily located in one of the Countries of Use that is authorized to access, use, or otherwise exploit the Software pursuant to the terms of this Agreement. For the avoidance of doubt, an employee of the same company as Licensee but of a different business unit or primarily located in a country not included in the Countries of Use is not an Authorized Licensee User
  7. End User. An “End User” is any individual or entity that receives the Models from Licensee pursuant to a valid End User Agreement (as defined below). For the avoidance of doubt, an End User of the Model may be the same as an Authorized Licensee User of the Software. Acceptable and Unacceptable uses of a Model by an End User (the “Acceptable Uses”) are included in the End User Agreement (defined below). The Acceptable Uses are incorporated herein by reference.
  8. End User Agreement. The “End User Agreement” refers to the Energy advice Model End User Agreement, which governs the usage of Models by End Users. The End User Agreement is attached as Addendum A to this Agreement.
  9. Permitted Number. “Permitted Number” refers to the permitted number of computers to which the Licensed Rights (or licenses granted hereunder) to the Software apply.
  10. Activation Key. The “Activation Key” means the security solution used to activate the Software via a hardware key or electronic code delivered for temporary activation or perpetual use.
  11. “Documentation” shall mean program documentation, user manuals, handbooks and other materials describing the use, design, installation, operation, and maintenance of the Software.
  12. “Trademarks” means the trademarks, service marks, trade names, service names, proprietary words, symbols, and other logos of Energy advice
  13. Intellectual Property Rights. “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights and any and all derivatives, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

 

Grant of Software License to Licensee

  1. If Licensee obtained the Software from Energy advice or one of its authorized Resellers or Distributors, and if Licensee complies with the terms of this Agreement, Energy advice grants Licensee a limited, non-exclusive, non-transferable, royalty free, revocable license to
  1. install the Software on any number of computers
  2. grant Authorized Licensee Users the right to use the Software to develop Models, provided that the number of computers where the Software is used concurrently does not exceed the Permitted Number; and provide, and grant Authorized Licensee Users the right to provide, Models created by the Software to End Users when the transfer is consistent with the Acceptable Uses defined in Addendum A hereinafter, subject to the availability of the appropriate function in the Software.

The Licensed Rights for the Software shall apply to each release of the Software that Energy advice provides to Licensee pursuant to the Agreement. The Software may not be used or shared with any individual or entity that is not an Authorized Licensee User without Energy advice’s prior written consent or pursuant to a separate agreement with Energy advice. Energy advice reserves all rights with respect to the Software not otherwise expressly granted to Licensee pursuant to this Agreement, including without limitation Intellectual Property Rights thereto.

Except as otherwise set forth herein, Licensee shall not directly or indirectly:

  1. modify the Software or create any derivative works thereof;
  2. sell, license, transfer, distribute, assign, pledge or otherwise dispose of or encumber the Software without Energy advice’s express written permission and subject to the terms of any applicable sublicensing agreement; grant any sublicense or other rights to the Software, or permit access to the same, by any user other than Authorized Licensee Users;
  3. reverse engineer, disassemble, de-compile, re-compile, reconfigure, reinstall, or update all or any part of the Software or merge them into any other software, except as expressly authorized by this Agreement;
  4. remove, obscure, or alter any legend on or in the Software
  5. copy or provide the Software or any copy, adaptation, transcription, or merged portion of it, except as expressly authorized by this Agreement to any third party;
  6. or otherwise use, copy, or provide the Software to any third party for any purposes or in any manner except as expressly permitted under this Agreement.

 

Licensee Responsibilities and End User Restrictions

Subject to the terms and conditions of this Agreement, Licensee shall have the following rights and responsibilities with respect to the Models created by the Software:

  1. Delivery of Models. Licensee must provide the End User Agreement to all End Users as either an exported text file that is provided with the Model or in any other form that ensures that End User can read and accept the terms, and each End User must accept the terms of the End User Agreement, prior to using the Model.
  2. End User as Authorized Licensee User. If the End User is also an Authorized Licensee User, the Authorized Licensee User shall be subject to the same restrictions set forth in the End User Agreement.
  3. Licensee is required to present the End User Agreement to each End User it provides a Model to. In the event Licensee becomes aware that an End User is violating the limitations imposed on them according to the End User Agreement, Licensee shall promptly notify Energy Advice of such.
  4. Licensee shall make no representations or warranties on behalf of Energy Advice except as Energy Advice may itself provide or approve in writing.

 

Intellectual Property Rights

  1. Energy advice IP. Energy advice and its suppliers retain the ownership of all right, title, and interest in and to the Software, Documentation, Trademarks, Energy advice Materials, and all Intellectual Property Rights embodied in the foregoing, including rights to all developments of and enhancements to the Software. Energy advice specifically retains ownership of the Software as embodied within any Models. Licensee agrees that it will not claim or assert title to the Software or attempt to transfer any title to End Users or any third parties, nor will Licensee grant access to the Software to any individual or group other than Authorized Licensee Users. Licensee shall take no action, which may adversely affect or impair Energy advice’s ownership of such materials and rights. All rights in and to the Software and Energy advice Materials not expressly granted in this Agreement are reserved by Energy advice.
  1. Energy advice’s Trademarks. In connection with Licensee’s activities authorized pursuant to this Agreement, Licensee is granted a non-transferable, non-exclusive right to use the Trademarks solely to identify the Software and associated services of Energy advice rendered under this Agreement or otherwise in accordance with instructions given from time to time by Energy advice. Licensee shall not attach any additional trademarks, service marks, or trade names to the Software and shall not use Energy advice’s trademarks as part of Licensee’s trademarks, service marks or trade names or in any other manner that would tend to imply that Licensee has an affiliation with Energy advice other than as set forth in this Agreement.

 

Injunctive Relief

Licensee agrees that money damages will not be an adequate remedy if Licensee breaches Sections 2, 3 and 4 of this Agreement. Therefore, Energy advice will be entitled to an injunction or similar equitable relief. This Section 5 in no way limits Energy advice’s ability to pursue any other legal or equitable remedies.

 

Licensing Fee

In consideration for the License granted hereunder, Licensee shall pay to Energy advice or an authorized distributor, as applicable, the fee indicated in the applicable invoice or purchase order (the “Licensing Fee”), pursuant to the terms of said invoice or purchase order.

 

Maintenance and Support

  1. During the Initial Support Term and any Extended Support Term (as defined below), Energy advice shall provide all software and customer support related to the Software to the Licensee (as described further in this Section 7(a), the “Maintenance & Support”). With Maintenance & Support, to report a problem or request support for any errors Licensee experiences with the Software, Licensee may access the “Get Support” button available on the toolbar within the Software. At Energy advice’s discretion, error corrections may take the form of a short-term work-around, Documentation update, maintenance on the Software, or a longer-term software correction provided in an upgraded release of the Software (by Energy advice to Licensee), depending upon Energy advice’s determination of the severity of the problem and/or the complexity of the solution. All items delivered by Energy advice in providing such support and Software updates shall be deemed part of the applicable Software and shall be subject to all terms and conditions of this Agreement.
  2. Maintenance Term. Licensee’s initial purchase of the Software license provided hereunder includes maintenance and support according to the license term but no longer than one (1) year of maintenance and support (the “Initial Support Term”). Following expiration of the Initial Support Term, Licensee may purchase continued Maintenance & Support in additional one (1) year terms (each, an “Extended Support Term”). Licensee and its Authorized Licensee Users may also continue using the Software pursuant to this Agreement without purchasing an Extended Support Term; however, Licensee will not receive support or upgrades to the Software without purchasing an Extended Support Term. Energy advice’s fees for Maintenance & Support during an Extended Support Term are available upon request.
  3. No Extended Support. Energy advice does not require Licensee to purchase consecutive Extended Support Terms. However, in the event of end of License, Licensee will be required to pay the full license price for the Software to receive renewed access to Energy advice ’s Maintenance & Support.
  4. Discontinuing Maintenance & Support. Energy advice reserves the right to discontinue Maintenance & Support services for older versions of the Software at any time, even if Licensee has an active Maintenance & Support contract.

 

Modifications of Software

Energy advice expressly reserves the right to make additions, deletions, and/or revisions (“Updates”) to the Software and change the terms of this licensing agreement accordingly. Except as otherwise specified by Energy advice, Energy advice will make any Updates to the Software available to Licensees who have active Maintenance & Support services (as described in Section 7) when they become commercially available and subject to any new licensing terms. For the avoidance of doubt, Licensee’s and Energy advice’s rights and obligations under this Agreement will be governed by this Agreement unless a new licensing agreement accompanies any Updates. Energy advice further reserves the right to modify or vary aspects of the Software in the future due to changing conditions and circumstances in markets, economies, demographics, competition, and governing laws. Licensee agrees that Energy advice shall not be liable to you or to any third party for any modification or discontinuance of any portion of the Software.

 

Evaluation License

If Licensee was provided with a copy of the Software for demonstration purposes, Energy advice grants to Licensee and the Authorized Licensee Users a non-exclusive, non-transferable limited internal use license to the Software for demonstration purposes only (the “Demonstration License”). Under the Demonstration License, Models may not be provided to End Users who are not Authorized Licensee Users. Energy advice explicitly prohibits the use of any Model Output obtained through using the Software under the Demonstration License for any purposes, whether for commercial or non-commercial uses, other than Software evaluation. If Software is acceptable, Licensee agrees to promptly notify Energy advice and pay the applicable Licensing Fee for the full Software license provided hereunder.

 

Term and Termination

  1. This Agreement shall be effective upon Licensee’s purchase and activation of the Software and shall continue until terminated as provided herein (the “Term”).
  2. Demonstration License. If Licensee was provided a copy of the Software for demonstration purposes, unless otherwise agreed to in writing by Energy advice, the Demonstration License term shall be for a period of thirty (30) days, commencing upon the date of requesting evaluation unlock key for the Software, to evaluate the Software. The Software automatically disables itself upon expiration of the Evaluation License.
  3. Licensee may terminate this Agreement at any time by ceasing to use the Software and complying with requirements set forth in Section 10 hereof. Energy advice may terminate this Agreement immediately without notice if Licensee fails to comply with any provision of this Agreement. Unless terminated by either party, this Agreement shall remain in effect.

 

Effect of Termination

Upon termination of this Agreement for any reason:

  1. Software Usage. Upon termination of this Agreement for any reason, Licensee shall immediately cease using the Software.
  2. Energy advice Property. Upon termination of this Agreement or an Evaluation License for any reason, Licensee shall remove the Software from all computers and return or destroy all copies of the Software (including the original) to Energy advice, and Licensee shall return or destroy the Activation Key(s), if any.
  3. Limitation of Liability Upon Termination. Except as expressly set forth herein, Energy advice shall not incur any liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by Licensee arising from or incident to any termination or cancellation of this Agreement by either party which complies with the terms of this Agreement, whether Licensee is aware of any such damage, loss, or expenses.
  4. Sections of this Agreement which shall survive the termination or expiration of this Agreement include, but are not limited to Sections 2, 3, 4, 5, 6, 9, 10, 11 and 13 – 22

 

Indemnification

Licensee agrees to defend, indemnify, and hold harmless Energy advice and any parent, subsidiary, affiliate, director, officer, employee, licensor, distributor, supplier, agent, reseller, owner, or operator of Energy advice from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Licensee’s use of the Software or Energy advice Materials; (ii) Licensee’s violation of any term of this Agreement; (iii) Licensee’s violation of any third party right; (iv) any claims brought by Licensee’s End Users (whether or not such End Users had the appropriate authority to use the Models; or (v) any claim that Licensee’s use of the Software, Models, or Energy advice Materials caused damage to a third party.

 

Confidential Information.

  1. Definition and Non-Disclosure. All information, knowledge or know-how concerning any of the unique features or characteristics of the Software, the methods of operation of the licensed technology hereunder, implementation of the Software, Energy advice’s pricing terms, or any other confidential information disclosed to Licensee by Energy advice (collectively, Energy advice’s “Confidential Information”) is valuable, proprietary information of Energy advice and an integral part of the Energy advice Materials, and must be kept strictly confidential to the fullest extent possible, both during and after the term of this Agreement. Licensee therefore understands and agrees that it shall not, during the term of this Agreement or thereafter without Energy advice prior written consent, communicate, divulge, or use for the benefit of any other person, persons, partnership, association, corporation, or other entity any Confidential Information of Energy advice which may be communicated to Licensee, or of which Licensee may be apprised, by virtue of Licensee’s operations under the terms of this Agreement. In furtherance of these obligations, Licensee shall maintain all Confidential Information in a secure location accessible only to those having a legitimate need for access and who have signed a separate confidentiality agreement in a form reasonably acceptable to both Licensee and Energy advice. Licensee further warrants, covenants, and agrees that it will use the Confidential Information for the benefit of Licensee and in connection with the operation of the Software and shall protect such Confidential Information and trade secrets from unauthorized disclosure. Licensee shall bear the responsibility for any breaches of confidentiality by its employees or consultants.
  2. Upon the termination of this Agreement, Licensee shall return to Energy advice all confidential manuals, supplements, and updates thereto and any other material furnished to Licensee under and pursuant to this Agreement and shall permanently and completely discontinue all use of Energy advice’s Confidential Information.
  3. The parties acknowledge and agree that the foregoing obligations shall survive any termination or expiration of this Agreement

 

 Representations and Warranties

The parties hereby represent and warrant that: (i) each party has the legal right and authority to enter into this agreement; (ii) each party’s performance and the rights granted to the other party hereunder shall not conflict with or violate any commitment or agreement that a party has to any other person or entity; (iii) each party shall perform its duties fully and to the best of its abilities; and (iv) the materials provided by one party to the other party shall not violate any law nor infringe upon nor violate any rights of any person, firm, corporation or entity including, but not limited to, the right of privacy, right of publicity, or the right against libel or slander.

 

Limited Software Warranty

Energy advice only warrants that the Software will perform substantially as set forth in the Documentation within 10 days from the date on which Licensee is granted a license so long as no modifications have been made to the Software. If the Software fails to substantially perform within the first 10 days, Licensee will be entitled to a replacement or a refund. Energy advice makes no other warranties with respect to the Software.

 

Disclaimer

THE SOFTWARE AND ANY ENERGY ADVICE MATERIALS FURNISHED BY ENERGY ADVICE UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ENERGY ADVICE DOES NOT WARRANT THAT THE SOFTWARE AND ANY ENERGY ADVICE MATERIALS WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE AND ANY ENERGY ADVICE MATERIALS WILL BE ERROR FREE. ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. ENERGY ADVICE DOES NOT WARRANT THAT THE USE OF THE SOFTWARE ALLOWED HEREUNDER SHALL RESULT IN ANY PARTICULAR LEVEL OR TYPE OF FINANCIAL RESULTS FOR LICENSEE. MOREOVER, ENERGY ADVICE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO END USERS’ USE OF THE MODELS OR RELIANCE ON ANY MODEL OUTPUT BY END USERS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE CONSIDERATION CHARGED FOR THE LICENSES AND OPPORTUNITIES PROVIDED HEREUNDER.

 

Limitation of Liability

LICENSEE AGREES THAT ENERGY ADVICE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, ECONOMIC, EXEMPLARY, AGGRAVATED OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS OR INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR MODELS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ENERGY ADVICE ARISING OUT OF THIS AGREEMENT EXCEED THE LICENSING FEE PAID TO ENERGY ADVICE BY LICENSEE FOR THE LICENSE GRANTED UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.

 

Changes

Energy advice reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions to any use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Licensee’s continued use of the Software will be deemed acceptance thereof.

 

Publicity

Licensee agrees that Energy advice may use Licensee’s name, logo, and other identifying marks (whether Licensee makes them available to Energy advice) for the purpose of identifying Licensee as an existing or past user of the Software in its promotional and marketing materials, including on the Eapsm.net website.

 

Miscellaneous

  1. Relationship of the Parties. Licensee acknowledges that its business is separate and apart from the Energy advice’s business. Nothing contained in this Agreement may be deemed to create the relationships of employer and employee, master and servant, franchisor and franchisee, partnership, or joint venture between the parties.
  2. Further Assurances. Each party shall take such action (including, but not limited to, the execution, acknowledgment, and delivery of documents) as may reasonably be necessary for the implementation or continuing performance of this Agreement.
  3. All Notices and other communications hereunder will be in writing and will be deemed given when received if (i) hand delivered; (ii) transmitted by facsimile or email; or (iii) mailed by certified or registered mail, return receipt requested, or dispatched by expedited delivery service to the respective addresses as either Party may designate.
  4. Jurisdiction; Choice of Law. Any disagreements and disputes between the Parties shall be resolved amicably. In case of inability to resolve the disagreements and disputes amicably, they shall be resolved within the procedure prescribed for by the laws of Lithuania by the court local to the Energy advice within 10 calendar days.
    The issues beyond the scope of this Agreement shall be handled within the procedure set forth in current legislation of the Republic of Lithuania.
  5. Waiver; Remedies Cumulative. Except as otherwise provided herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither any failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law: (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by a party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by such party; (ii) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one party will be deemed to be a waiver of any obligation of that party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement
  6. Entire Agreement and Modification. This Agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may be amended, supplemented, or otherwise modified by Energy advice for any future releases of the Software.
  7. Assignments, Successors, and No Third-Party Rights. Licensee may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Energy advice. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement, except such rights as will inure to a successor or permitted assignee pursuant to this Section.
  8. Costs, Expenses and Attorneys’ Fees. Licensee shall reimburse Energy advice for all reasonable costs (including attorneys’ fees) incurred by Energy advice in collecting late payments from Licensee. If Energy advice commences any action or proceeding against Licensee to enforce or interpret this Agreement, and Energy advice prevails, then Energy advice shall be entitled to recover from Licensee (in addition to any other damages) the actual costs, expenses, and attorneys’ fees (including all related costs and expenses), incurred by Energy advice in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
  9. No part of the Agreement shall be construed as to create a partnership or joint venture between the parties hereto.
  10. If any provision of this Agreement is held invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
  11. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. Unless expressly indicated otherwise, all references to “Sections” refer to the corresponding Sections of this Agreement.
  12. Licensee acknowledges that: (a) Licensee has read and understands this Agreement; (b) Licensee had an opportunity to have its legal counsel review this Agreement; (c) that this Agreement has the same force and effect as a signed agreement; and (d) you as the individual accepting this Agreement, on behalf of a corporation or other legal entity do personally represent that you are duly authorized to accept this Agreement on behalf of such entity and that this Agreement is binding upon such entity.

Addendum A. EA-PSM Model End User Agreement

THE MODEL PROVIDED TO YOU HEREUNDER WAS DEVELOPED THROUGH THE USE OF ENERGY ADVICE LITHUANIA, (“EA PSM”) PROPRIETARY SOFTWARE. IN ORDER FOR YOU TO USE THE MODEL(S), YOU, THE END USER, AGREE TO ABIDE BY THE TERMS AND CONDITIONS HEREIN WHEN UTILIZING THE MODELS DESCRIBED BELOW.

 BY RECEIVING, TRANSFERRING, OR OTHERWISE USING THE MODELS PURSUANT TO THE TERMS OF THIS AGREEMENT, YOU REPRESENT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT WITH ENERGY ADVICE AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE MODEL.

 

Definitions

  1. EA PSM Software. The “EA PSM Software” shall mean the software owned by Energy advice that is used to create the Models (defined below) pursuant to the terms of the Software Licensing Agreement for EA PSM
  2. EA-PSM Cloud. The “EA-PSM Cloud” means the specific edition of Energy advice software, platform, or other services developed, operated, and maintained by Energy advice
  3. EA-PSM Private Cloud. The “EA-PSM Private Cloud” means the software developed and owned by Energy advice that is installed and operates on a Licensee’s private network pursuant to the Software Licensing Agreement for EA-PSM Private Cloud and provides functionality like EA-PSM Cloud.
  4. Model(s). The “Model” or “Models” means a simulation model created using the EA PSM Software and provided to End User hereunder.
  5. Model Output. “Model Output” means the output and data that is derived from running a Model.
  6. “Licensee” is the individual or entity that entered into an agreement with Energy advice for the right and license to use the Software.
  7. Authorized Licensee User(s). An “Authorized Licensee User” is any individual employed by Licensee within the same business unit, internal division or group that was authorized to access, use, or otherwise exploit the Software. For the avoidance of doubt, an employee of the same company as Licensee but of a different business unit is not an Authorized Licensee User.
  8. End User. An “End User” is you, an individual or entity, which receives the Models from Licensee or Authorized Licensee User pursuant to this End User Agreement to use in the regular course of your affairs, but not for resale, modification, distribution, or exploitation by third parties without Energy advice’s prior written consent.
  9. Intellectual Property Rights. “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights and any and all derivatives, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

 

Restrictions on Use and Distribution of Models

Subject to the terms and conditions of this Agreement, End User shall have the following rights and responsibilities with respect to the Models:

  1. The End User has a limited right to use, reproduce, transfer, or otherwise exploit the Models only in accordance with the permitted uses set forth in the attached Exhibit A (the “Acceptable Uses”).
  2. If the End User is not sure whether its desired use of the Models is permitted under the Acceptable Uses, then End User should consider the desired use to be prohibited, and End User must obtain Energy advice’s prior written consent, which may be withheld in Energy advice’s sole discretion, before engaging in the desired use.
  3. This End User Agreement must accompany any dissemination, sale, or other transfer of the Model to a third party by End User.

 

Indemnification

End User agrees to defend, indemnify, and hold harmless Energy advice and any parent, subsidiary, affiliate, director, officer, employee, licensor, distributor, supplier, agent, reseller, owner, or operator of Energy advice from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from End Users use of the Models.

 

Injunctive Relief

End User agrees that money damages will not be an adequate remedy if End User breaches Sections 2 of this Agreement. Therefore, Energy advice will be entitled to an injunction or similar equitable relief. This Section 4 in no way limits Energy advice’s ability to pursue any other legal or equitable remedies against End User.

 

Intellectual Property Ownership

Energy advice (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the EA PSM Software and the EA PSM Software as embodied within any Models. This Agreement is not a sale and does not convey to End User any rights of ownership in or related to the EA PSM Software or the Intellectual Property Rights owned by Energy advice. Energy advice’s name, logo, and the product names associated with the EA PSM Software are trademarks of Energy advice or third parties, and no right or license is granted to use them.

 

Disclaimer

THE MODEL(S) SUBJECT TO THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ENERGY ADVICE DOES NOT WARRANT THAT THE MODELS WILL MEET END USER’S NEEDS OR REQUIREMENTS, OR THAT THE OPERATION OF THE MODEL WILL BE ERROR FREE. ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. ENERGY ADVICE DOES NOT WARRANT THAT THE USES OF THE MODEL ALLOWED HEREUNDER SHALL RESULT IN ANY PARTICULAR LEVEL OR TYPE OF FINANCIAL RESULTS FOR END USER. MOREOVER, ENERGY ADVICE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO YOUR USE OF THE MODELS OR RELIANCE ON ANY MODEL OUTPUT. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING OR PROVIDING THE MODELS TO THIRD PARTIES AND ASSUME ANY RISKS ASSOCIATED WITH YOUR EXERCISE OF PERMISSIONS UNDER THIS AGREEMENT.

 

Limitation of Liability

END USER AGREES THAT ENERGY ADVICE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, ECONOMIC, EXEMPLARY, AGGRAVATED OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS OR INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE MODELS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ENERGY ADVICE ARISING OUT OF THIS AGREEMENT EXCEED 100 €. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.

 

Choice of Law

This Agreement will be governed by and construed under the laws of Lithuania and, to the extent not inconsistent therewith, the laws of Lithuania without regard to conflicts-of laws principles that would require the application of any other law. The parties agree that exclusive venue for any legal action relating hereto shall be in Kaunas, Lithuania and jurisdiction shall be vested in the Kaunas District Court in and for Kaunas, Lithuania. The parties agree not to contest the venue set forth herein and to submit to, and not contest, the exercise of personal jurisdiction over them by any of the foregoing courts. The parties hereby waive all rights concerning the exercise of personal jurisdiction of them by the foregoing courts and all claims of or concerning forum non-convenience in the foregoing forums.

 

Acknowledgement

End User acknowledges that: (a) End User has read and understands this Agreement; (b) End User had an opportunity to have its legal counsel review this Agreement; (c) that this Agreement has the same force and effect as a signed agreement; and (d) you as the individual accepting this Agreement, on behalf of a corporation or other legal entity do personally represent that you are duly authorized to accept this Agreement on behalf of such entity and that this Agreement is binding upon such entity.

Exhibit A. Acceptable and Unacceptable Uses

Your use of the EA-PSM Software and Models (as defined in the EA-PSM End User Agreement) is limited. This document presents acceptable and unacceptable uses of the EA-PSM Software. If you are not sure whether your use or desired exploitation of the Models is allowed by Energy advice, you should assume the use or exploitation is unacceptable. In such circumstances, please contact Energy advice directly.

 

Acceptable Uses

  1. An Authorized Licensee User runs and uses the Model through the EA-PSM Software (i.e., on a computer where the EA-PSM Software is installed) manually, not via any kind of remote interface. This is an acceptable use regardless of whether the Model was developed using the same installation of the EA-PSM Software or not, by the same Authorized Licensee User or not, or by the same Licensee or not. In this case, the Authorized Licensee User is also the End User.
  2. An Authorized Licensee User exports the Model by function “Save” of the EA-PSM Software and provides the exported Model to another employee of the same Licensee (“Colleague”) for his or her use. In this case, the Colleague is the End User.
  3. An Authorized Licensee User exports the Model by function “Save” of the EA-PSM Software and provides it to a person or entity other than the Licensee, such as a client of the Licensee (“Client”), provided that the Model is tailored for this Client and not provided to multiple parties. In this case, the Client is the End User.
  4. An End User provides the Model to another employee of the same division, business unit or group that the End User belongs to. In this case, the second employee becomes an End User.
  5. An Authorized Licensee User exports the Model by function “Save to Cloud” of the EA-PSM Software and uses the model through the EA-PSM Cloud or EA-PSM Private Cloud. In this case, the Authorized Licensee User is also the End User.
  6. An Authorized Licensee User exports the Model by function “Save to Cloud” of the EA-PSM Software and provides it to any person or entity other than the Licensee, such as a client of the Licensee (“Client”), through the EA-PSM Cloud or EA-PSM Private Cloud. In this case, the Client is the End User.

 

Unacceptable Uses

  1. The EA-PSM Software is installed on a server, including but not limited to a web server or a computer acting as a server, and the EA-PSM Software is remotely invoked to generate and/or execute a Model.
  2. A Model is executed on a server, including but not limited to a web server or a computer acting as a server, and specifically excluding the EA-PSM Cloud servers and EA-PSM Private Cloud servers, and the Model is remotely invoked either as a standalone application or as a part of another application.
  3. A Model is a product or a part of a product (software delivered/made available to multiple parties, where a party can be a different business unit of the same company where Licensee belongs to), provided free of charge or commercially, while providing services to the receiving party or not.

If you desire to use the EA-PSM Software and/or Models in a way that is listed among the Unacceptable Uses and/or not listed among the Acceptable Uses, it does not mean your intended use is fully prohibited. Rather, you are required to notify Energy advice about your desired use or provision and obtain Energy advice’s prior written consent. Additional consents may incur a certain one-time fee and/or applicable royalties.

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