License for WeatherShift Files

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE.  BY DOWNLOADING THE PRODUCT OR USING THE FILES, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE CANCEL THE INSTALLATION PROCESS AND A FULL REFUND WILL BE PROVIDED.
 
Arup North America Ltd. (“Licensor”) grants to end user (“Licensee”) a nonexclusive and nontransferable license to use for the future weather files produced by the WeatherShift tool purchased through the IES website (“Files”) pursuant to the following terms:  

License:  Subject to the terms of this Agreement and payment of all applicable fees, Licensor hereby grants to Licensee a non-exclusive, nontransferable license with no sublicensing rights to Licensee to use the Files. 
Important Considerations:  Licensee understands and acknowledges the following:

1. The WeatherShift tool was built to create energy simulation weather files that have taken information from select global climate models provided by Argos Analytics, LLC into account.  Licensee is responsible and liable for all inferences made, and interpretation of, the Files at its sole risk.
2. The WeatherShift tool produces future weather files in the EPW (EnergyPlus Weather) format.  These can be converted into other formats as needed at Licensee’s sole risk and subject to the restrictions on use stated herein.
3. The WeatherShift tool shifts certain time series data.  All location specific header information on the Files, including design day information, remains unchanged from the original weather file. A comment field in the header is appended with details of the WeatherShift inputs used for that files generation.  

Restrictions on Use:  Licensee shall not, nor permit others to:

1. Create derivative works from or distribute the Files, any part of it, or any copy, adaptation, transcription, or merged portion of it;
2. decode, reverse engineer, or otherwise interrogate the files for the purpose of recreating the morphing methodology or climate offsets. 
3. exploit or sell the Files commercially;
4. transfer, loan, lease, assign, charge, rent, or otherwise sublicense the Files or this Agreement;
5. use the Files in any manner that infringes the intellectual property or other rights of Licensor or any other party; or
6. remove or alter any copyright, proprietary or similar notices from the Files or any copies.

Trademark & Intellectual Property Rights:  WeatherShift is a trademark of Arup North America Ltd.  The copyright, patents, trademarks and all other intellectual property rights in the Files and related documentation are owned by and remain the property of Licensor.  Licensee does not obtain any rights in the Files other than those expressly granted in this Agreement.
 
Payment:  Licensee agrees to make full payment through the IES Website prior to receiving the Files, which is at least $1, in consideration for the license. 
 
Confidentiality:  Licensee agrees to treat the Files as confidential and use the same standard of care to maintain their confidentiality as they would Licensee confidential information. 
Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software
 
Limited Warranties and Representations:

1. The Files are licensed on an “as is” basis. 
2. Licensor warrants and represents to Licensee that it has the right to grant to Licensee a license to use the Files set out in this Agreement and the use of the Files in accordance with the terms of this Agreement will not infringe the intellectual property rights of any third party.
3. Licensor does not warrant that the Files will meet Licensee’s particular requirements, whether or not those requirements have been made known to Licensor.
4. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.

Limitation of Liability:  The parties and Argos Analytics, LLC shall not be liable for any consequential, indirect or special damages, even if the party has been advised of the possibility of such loss or damage, including but not limited to the following: (i) loss of profits, revenue, contracts or anticipated savings; (ii)       loss arising out of any delay or loss of time; or (iii) loss or damage arising from loss, damage or corruption of any data.
 
To the fullest extent permitted by law, the total liability of Licensor under or in connection with this Agreement whether in contract, tort, negligence, breach or otherwise, shall be limited to the lesser of $50,000 or 150% of the Fee paid for the Files giving rise to the liability.
 
Indemnification: Licensee shall indemnify, protect, defend and hold Licensor and Argos Analytics, LLC harmless and keep Licensor and Argos Analytics, LLC fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with: (a) any breach by Licensee of this Agreement; (b) any breach by Licensee of copyright or other intellectual property or proprietary right; and (c) a breach of confidence by the Licensee, his servants, agents, employees and contractors.
 
Termination:  This License is effective until terminated. Licensee may terminate this License at any time by destroying all copies of Files including any documentation. This License will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this License. Upon termination, Licensee must destroy all copies of Files. 
 
Applicable Law:  This license is governed by and construed in accordance with the laws of the State of California, USA, as if performed wholly within the state and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this License shall remain in full force and effect.  This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.  The parties agree to resolve any disputes amicably through good faith negotiation or mediation as a condition precedent to litigation.
 
Entire Agreement:  This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms that may be contained in Licensee's purchase order or forms.