HEROLD END-USER LICENSE AGREEMENT

BY ACCESSING OR USING ANY SOFTWARE AND/OR APPLICATIONS (COLLECTIVELY, “SOFTWARE”) PROVIDED TO YOU BY OR ON BEHALF OF ENERGY & WEATHER FORECASTING, LLC AND ITS AFFILIATED ENTITIES (“HEROLD”) IN CONNECTION WITH YOUR USE OF THE HEROLD SERVICE, YOU ACKNOWLEDGE AND AGREE YOU HAVE READ THIS END USER LICENSE AGREEMENT (“LICENSE AGREEMENT”); (2) YOU UNDERSTAND IT; (3) YOU ARE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT; AND (4) YOU MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. DO NOT ACCESS OR USE THE SOFTWARE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS LICENSE AGREEMENT.

This License Agreement is effective as of the date you click “Accepted and Agreed To” on the Terms of Use (the “Effective Date”).

  1. General

    This License Agreement contains details on your limited right and license to use the Software solely in the connection with your use of the Herold Service. This License Agreement is between you and Herold and not any other party.

    The Software contains material that is protected by copyright and other applicable intellectual property laws in the U.S. and other territories. The Software is licensed, not sold or given, to you by Herold for use only under the terms of this License Agreement and all rights not specifically granted to you herein are reserved to Herold and to any third party with ownership rights in software and documentation used in the Software. You may not remove any proprietary notice of Herold or any other party from any copy of the Software or documentation.

    The rights granted under the terms of this License Agreement include any software upgrades that replace and/or supplement the original Software.

    Herold reserves the right, from time to time, with or without notice to you, to change the terms of this License Agreement in our sole and absolute discretion. The most current version of this License Agreement will supersede all previous versions. Your use of the Software after changes are made means that you agree to be bound by such changes. As such, you should review the License Agreement periodically.


  2. Permitted Use/Restrictions

    1. Grant of Limited License.

      1. Herold grants you a non-exclusive, limited, personal and nontransferable license, subject to and condition on your compliance with the restrictions set forth in this License Agreement, to install and use the Software, in object code form only, provided to you by or on behalf of Herold in connection with your use of the Herold service.

      2. The license grant above includes the right to use documentation accompanying the Software for the sole purpose of using the Herold service.

      3. Unless prior permission is given to you by Herold, the Software is only for your own personal, non-commercial use and not for use in the operation of a business or service bureau, for profit or for the benefit of any other person or entity.

    2. Restrictions on Software Rights
    3. As a condition of the limited license for the Software granted to you in this License Agreement, except as and only to the extent expressly permitted in this License Agreement or by applicable law which cannot be waived by this License Agreement, you may NOT:


      1. publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software or any part thereof;

      2. copy, decompile, reverse engineer, disassemble, translate, adapt or otherwise reduce the Software to human readable form’

      3. attempt to create the source code from the object code of the Software;

      4. transmit or make the Software available over a network where it could be used by multiple computers or Herold ready devices at the same time;

      5. make any third-party software contained in the Software a standalone product;

      6. take any action that will infringe on the intellectual property or other property rights of Herold or any third-party software provider;

      7. sublicense or assign the Software;

    4. No Ownership Rights.
    5. You have no ownership rights in any Software. Rather, you have a limited license to use the Software as long as this License Agreement remains in effect. Ownership of the Software and all intellectual property rights therein shall remain at all times with Herold and/or its licensors. Any other use of the Software by any other person, business, corporation, government or any other entity is strictly prohibited and is a violation of this License Agreement.


  3. Upgrading the Software.

    Herold may issue you an upgraded version of the Software automatically upon an instance of your use of the Software or the Herold service. Alternatively, Herold may require you to consent to an upgrade to the Software (“Software Upgrades”) before using, installing or accessing the Software. If you decline the Software Upgrades, you may not be able to use or access the Software or the Herold Service.


  4. Consent to Use of Data

    The Software may provide Herold with limited access to your Herold ready device. You grant Herold permission to access, process and otherwise use any information submitted or transmitted by you in order to provide the Herold Service to you. Your information will, among other things, enable Herold to manage rights associated with the Herold Services, allow Herold to help you use the Software more effectively, enforce Herold’s Terms of Use and otherwise help Herold to enhance and improve the Software and the Herold Service. Information obtained by Herold will be treated in accordance with your Privacy Policy.


  5. Third Party Sites and Content

    You understand that the Herold Service may contain or send you links to third party websites, applications or features not owned or controlled by Herold (“Third Party Sites”), and that links to Third Party Sites may also appear in content available to you through the Herold Service. The Herold Services may also enable interactions between the Herold Service and a Third Party Site through applications that connect the Herold Services or your account, with a Third Party Site. Through Third Party Sites you may be able access content that Herold does not control and/or share your content with others. YOU ACCESS THIRD PARTY SITES ENTIRELY AT YOUR OWN RISK, AND HEROLD WILL HAVE NO LIABILITY FOR YOUR USE OF OR ACCESS TO THIRD PARTY SITES AND/OR THIRD PARTY CONTENT.


  6. Export Law Assurances

    You may not use or otherwise export or re-export the Software except as authorized by United State law and the laws of the jurisdiction in which the Software was legally obtained or authorized by Herold. In particular, but without limitation, the Software may not be exported or re-exported: (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant you are not located in any such country or on any such list.


  7. Termination

    This License Agreement is effective until terminated. Your rights under this License Agreement are terminable by Herold at any time without notice. Further, this License Agreement will terminate if Herold finds that you have violated any of the terms of this License Agreement. No waiver of any breach of any provision of this License Agreement by Herold shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of Herold. All provisions relating to confidentiality, proprietary rights, and nondisclosure shall survive the termination of this License Agreement.

    Your ability to use the Herold service is subject to your system compatibility with our Software as such requirement may change from time to time. Compatibility of system requirements with the Software is your responsibility.

    Upon the termination of this License Agreement, you shall cease all use of the Software and Herold service and destroy all copies, full or partial, of the Software that you may have downloaded hereunder.


  8. Disclaimer of Warranties and Limitations on Liability

    YOU AGREE THAT YOU ACCEPT THE SOFTWARE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) HEROLD HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) HEROLD DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) HEROLD DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE; AND (d) HEROLD DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE SOFTWARE OR OTHER THIRD PARTIES.


  9. Mobile Applications.

    If you have downloaded any Software from the Apple iTunes Application Store and/or the Google Play Store (collectively “Mobile App Store”), the following additional terms apply to such Software:

    1. You agree and acknowledge that Google and Apple (the “App Store Owners”) are not responsible for the Software and its content. Moreover, we hereby inform you and you acknowledge and agree that the App Store Owners have no obligation whatsoever to furnish any maintenance and support services with respect to the Software.

    2. The App Store Owners has no warranty obligation with respect to the Software and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in this License Agreement is the responsibility of Herold. Please note that Herold has disclaimed all warranties (see section above).

    3. The App Store Owners are not responsible for addressing any claims relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

    4. The App Store Owners are not responsible for any third-party infringement claims that the Software or your possession and use of the Software infringe a third party’s intellectual property rights.

    5. Herold and you acknowledge and agree that the App Store Owners and the App Store Owners’ subsidiaries, are third party beneficiaries of this License Agreement with respect to any such Software, and that the App Store Owners will have the right (and will be deemed to have accepted the right) to enforce the License Agreement against you as a third party beneficiary thereof as set forth herein.

  10. Miscellaneous

    1. Independent Contractors. You and Herold are independent contractors. Neither is the agent of the other, and neither may make commitments on the other’s behalf.

    2. Notices. Herold may send notices to you by email at the email address provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this License Agreement to Herold by email to help@askherold.com and such notices will be deemed received 72 hours after they are sent.

    3. Assignment & Successors. You may not assign this License Agreement or any of your rights or obligations under this License Agreement without Herold’s express written consent. Except to the extent forbidden in this Section 10.3, this License Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

    4. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this License Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this License Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this License Agreement will continue in full force and effect.

    5. No Waiver. Neither Herold or you will be deemed to have waived any of its rights under this License Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this License Agreement will constitute a waiver of any other breach of this License Agreement.

    6. Choice of Law & Jurisdiction. This License Agreement will be governed solely by the internal laws of the State of Texas, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. To the extent that arbitration is not required under Subsection 10.10 below, the parties consent to the personal and exclusive jurisdiction of the federal and state courts of Lubbock, Texas. This Subsection 10.6 and Subsection 10.10 below govern all claims arising out of or related to this License Agreement, including without limitation tort claims.

    7. Conflicts. In the event of any conflict between this License Agreement and any Herold policy posted online, including without limitation the Terms of Use, Privacy Policy, the terms of this License Agreement will govern.

    8. Entire Agreement. This License Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Herold or you have relied upon any such prior or contemporaneous communications.

    9. Amendment. Herold may amend this License Agreement from time to time by posting an amended version at its website and sending you written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless you first give Herold written notice of rejection of the amendment. Written notice shall include notice sent via electronic mail or notifications on the Herold website or mobile application. In the event of such rejection, this License Agreement will continue under its original provisions for 30 days following the Proposed Amendment Date (unless either you or Herold first terminates this License Agreement pursuant to Article 7, Termination). Your continued use of the Software following the effective date of an amendment will confirm your consent to the Amendment. This License Agreement may not be amended in any other way except through a written License Agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 10.9, Herold may revise the Terms of Use and Privacy Policy at any time by posting a new version of either at Herold’s website, and such new version will become effective on the date it is posted.