This End User License Agreement ("Agreement") is a binding agreement between the end user ("you", "your" or "End User") of the software application and website (as defined herein) and Advanced Facility Analytics, LLC ("A.F. Analytics"). This Agreement governs your use of the all A.F. Analytics software, including the Hosted Software (both as defined herein) and all related documentation. The software is licensed, not sold, to you.
BY DOWNLOADING/INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
"A.F. Analytics Data" means all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
"Device" means to use the software application offered by A.F. Analytics through which your A.F. Analytics account is accessed.
"End User Data" means data entered or uploaded by you to the Hosted Software via the A.F. Analytics website.
"Hosted Software" means the online software, platform and websites which you can access via the software and your account that are hosted and maintained by A.F. Analytics.
"Services" means a web-based software platform with interactive tools to record and communicate information related to the energy performance reported by the end users.
"Website" means the website accessible at afanalytics.com or advancedfacilityanalytics.com.
A.F. Analytics, through the Website, provides the software to registered users. Subject to your compliance with the terms of this Agreement, A.F. Analytics grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software or End User Data under this Agreement or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. A.F. Analytics and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Software and Website. All rights not specifically granted in this Agreement are reserved by A.F. Analytics. A.F. Analytics shall own all rights in any functionality, features, modification or customization of the Software.
You acknowledge that when you download, install or use the Software, A.F. Analytics may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Device Software (which is included in the definition of End User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Device Software or certain of its features or functionality, and the Device Software may provide you with opportunities to share information about yourself with others. cy and which may be updated from time to time without notice By downloading, installing, using, and providing information to or through this Device Software, you consent to all use and actions taken by us with respect to your information pursuant. You also consent to any transfer, sale, assignment, conveyance or license by A.F. Analytics of your End User Data.
All ownership rights in and to the Device Software shall remain exclusively with A.F. Analytics, its partners, and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
A.F Analytics may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that A.F Analttics has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
The Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-partywebsites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that A.F. Analytics is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. A.F. Analytics does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ADVANCED FACILITY ANALYTICS LLC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
ADVANCED FACILITY ANALYTICS LLC DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SOFTWARE, HOSTED SOFTWARE, ADVANCED FACILITY ANALYTICS LLC SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE ADVANCED FACILITY ANALYTICS LLC SOFTWARE OR HOSTED SOFTWARE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF ADVANCED FACILITY ANALYTICS LLC.
UNDER NO CIRCUMSTANCES SHALL ADVANCED FACILITY ANALYTICS LLC BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE ADVANCED FACILITY ANALYTICS LLC APPLICATION, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE ADVANCED FACILITY ANALYTICS LLC SOFTWARE, HOSTED SOFTWARE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO ADVANCED FACILITY ANALYTICS LLC RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE SOFTWARE AND YOU TO THE ADVANCED FACILITY ANALYTICS LLC SERVICES AVAILABLE THROUGH THE SOFTWARE OR HOSTED SOFTWARE.
You agree to indemnify, defend and hold harmless A.F. Analytics and its officers, directors, employees, agents, affiliates, service providers, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Software, Hosted Software or your breach of this Agreement.
This Agreement is governed by and construed in accordance with the internal laws of the State of New Mexico without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Software or Hosted Software shall be instituted exclusively in the federal courts of the United States or the courts of the State of New Mexico in each case located in Dona Ana County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
This Agreement constitutes the entire agreement between you and A.F. Analytics with respect to the Software and the use of the Hosted Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.