Conditioned on your continued compliance with the terms and conditions of this Agreement, this Agreement provides you with a limited, revocable, non-exclusive, nontransferable license for up to one (1) company or user (for purposes of the General Use License, the “Authorized User”) to access and use for your internal business purposes Cool Calc’s web-based solution(s) (the “Cool Calc App”). The Cool Calc App may be accessed by unlimited devices during the term of your subscription. You hereby accept and agree to the terms and conditions of this Agreement on behalf of the Authorized User, although DCNE is entitled to enforce this Agreement against any Authorized User that breaches its terms or conditions. This license permits you or your Authorized User to (i) access the Cool Calc App via the Internet, and (ii) create printouts of output from the Cool Calc App for internal business purposes only. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to you or any third party. Moreover, all access to any software utilized in connection with the Cool Calc App shall be on a remote and Software-as-a-Service basis. You will not have any right to any programming code or a fully copy of any software.
DCNE offers no charge ("free") subscriptions to certain Cool Calc applications. Free subscriptions have no defined term length, but may be terminated by DCNE at any time without notice. You may not resell, sublicense, or charge for outputs generated by Cool Calc. Using outputs in a paid solution requires a commercial application programming interface ("API") license.
Except as provided above, you may not modify, alter, comingle, merge, translate, decompile, create derivative work(s) of, distribute, disassemble, reverse engineer, benchmark, broadcast, transmit, reproduce, attempt to examine the source code for, publish, license, sub-license, transfer, sell, resell, exploit, rent, timeshare, outsource, provide on a service bureau basis, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the Cool Calc App or any part thereof. In addition, you may not remove or alter any proprietary notice on the Cool Calc App. All rights not expressly granted to you herein are hereby reserved by DCNE.
By accessing, or using the Cool Calc App in order to view any information and materials, you represent that you will, at all times, provide true, accurate, current, and complete information when submitting information or materials in connection with your use of the Cool Calc App, including, without limitation, when you provide information via a registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, DCNE reserves the right to terminate immediately your access to and use of the Cool Calc App. By accessing, and/or using the Cool Calc App, you also represent that you agree to abide by all applicable laws and regulations with respect to your use of the Cool Calc App and not to use the Cool Calc App for any unfair, harassment, or deceptive purposes. DCNE assumes no responsibility or liability for any claims that may result directly or indirectly from the usage, application and/or results you may have using the Cool Calc App.
You agree that you, not DCNE, is and shall be fully responsible for retaining your customers’ records, information or other customer data. You accept full responsibility for obtaining any customer and other third party consents or authorizations (in compliance with any other applicable law, regulation and governmental licenses) in connection with your use the Cool Calc App for such clients or third parties. You grant DCNE the limited right and license to retain and use certain customer data as may be required by law or otherwise for its own administrative and business purposes, which may include testing, improving, and developing Cool Calc functionality, as well as statistical analysis of such data.
We encourage you to use our support site to interact with other Cool Calc members. We may provide you and others with the opportunity, through forums, blogs, message boards, knowledge bases or other communication functionality to submit to us certain content and materials ("User Content") for display, distribution or publication on the support site. By using the support site, you agree to the User Content Rules.
By submitting, posting or displaying User Content on or through the support site, you grant to DCNE a non-exclusive, transferable, unlimited, worldwide, irrevocable, sub-licensable and royalty-free license to publish, host, copy, distribute, modify, create derivative works from, reproduce, display, perform, transmit, process or otherwise use in any manner whatsoever and in all formats or distribution methods now known or developed hereafter, all or any portion of your User Content for the purposes of providing, optimizing, improving and promoting our applications. You agree this license includes the right to use your name, persona and likeness included in any User Content in connection with delivering the support content, without any obligation or compensation to you. You further agree this license includes the right for DCNE to publish your User Content in a searchable format that may be accessed by other users of the support site.
DCNE and/or its licensors, as applicable, retain all ownership right, title, and interest in and to all programs, software, databases, information, and documentation associated with the Cool Calc App as well as any data or content compiled, collected, or associated with the Cool Calc App or with the selection or arrangement thereof. Cool Calc and all other names, logos, and icons identifying Cool Calc and its products and services are proprietary trademarks of DCNE, and any use of such marks without the express written permission of DCNE is strictly prohibited. All logos, names, and icons referring to Air Conditioning Contractors of America Association, Inc. (“ACCA”), and it's manuals (including, but not limited to "Manual J" and "Manual S") are proprietary trademarks of ACCA, and any use of such marks without the express written permission of ACCA is strictly prohibited. Accordingly, unauthorized use of the Cool Calc App may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law. You may not alter report outputs or remove or replace names, logos, and icons identifying Cool Calc.
You acknowledge and agree that the Cool Calc app contains certain proprietary trade secrets and non-public information of DCNE and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of DCNE (and/or its licensors) in a manner consistent with the maintenance of DCNE’s rights therein, using at least a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
You shall not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by DCNE for use of the Cool Calc application(s). DCNE reserves the right at any time, and without notice, to modify, suspend, terminate, or interrupt operation of or access to the Cool Calc App, or any portion thereof, in order to protect the Cool Calc App or DCNE’s rights or business or upon any unauthorized use of the Cool Calc app. You will immediately notify DCNE if you become aware of any unauthorized use of the Cool Calc app.
The Cool Calc app and any associated information, services, programs, products, and materials are provided “as is” and “as available” without warranty of any kind, including, without limitation, all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement as well as any warranty related to the use, or the results of the use, of the Cool Calc app in terms of availability, accuracy, security, reliability, or otherwise. DCNE and its third party licensors do not warrant that the Cool Calc app will operate error-free, uninterrupted, or in a manner that will meet your requirements. The entire risk as to the availability, quality, and performance of the Cool Calc application is with you.
DCNE shall not be liable for any claim of harm resulting from a cause beyond DCNE’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. Moreover, you agree that in no event shall DCNE be liable for any indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of the Cool Calc application, whether based in contract, tort, strict liability, or otherwise, and even if DCNE has been advised of the possibility of damages.
You agree to defend, indemnify, and hold harmless DCNE and its board of directors, committee members, affiliates, employees, licensors, agents, directors, officers, partners, representatives, shareholders, attorneys, successors, and assigns from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your use of the Cool Calc application, including any loss or theft of your clients’ information, and any breach by you of this Agreement. You shall use reasonable efforts to cooperate with DCNE in defense of any claim, and you acknowledge and agree that DCNE reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at your sole expense or such other cost sharing arrangement agreeable to DCNE, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.
This Agreement and all matters or issues related to this Agreement shall be governed by and construed under the laws of the State of Massachusetts without application of principles of conflicts of laws. Each of the Parties irrevocably and unconditionally agrees that any legal proceeding arising out of or relating to this Agreement may be brought either in the Boston General District Court, or, if that court lacks jurisdiction, in any court of competent jurisdiction in Suffolk County, and consents to the jurisdiction of each such court in any proceeding. All such proceedings shall be conducted without a jury, and you hereby agree as condition of using the Cool Calc application(s) to a waiver of any jury trial.
If any provision (or part thereof) contained in this Agreement is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein. Please note that DCNE reserves the right to change the general terms and conditions of this Agreement applicable to all Authorized Users and under which the Cool Calc App is extended to you by providing you at any time without written notice. Your continued use of the Cool Calc App will be conclusively deemed acceptance of any change to this Agreement or the Cool Calc App.