END USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“End User Agreement”)
CAREFULLY BEFORE USING THE SOFTWARE.
BY USING THIS SOFTWARE,
YOU ARE AGREEING TO USE THE SOFTWARE SOLELY IN
ACCORDANCE WITH ITS INTENDED USE AND YOU ARE CONSENTING TO BE BOUND BY THIS END
USER AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS END USER
AGREEMENT, PROMPTLY RETURN AND DO NOT USE THE SOFTWARE.
Single User License. Subject to the terms and conditions of this End User Agreement, Celsia, LLC, doing business as
Gaia Geothermal (“Gaia”) and its suppliers grant to you (“Customer”) a non-exclusive, non-transferable dongle-based
license to use the GROUND LOOP DESIGN™ software program in object code form and all related materials
included herewith, including written materials, binders and other containers (hereinafter the "Software") on supported
Use. Upon: a) receipt of full payment by Gaia, or a Gaia authorized reseller of the applicable license fees, Customer
will be able to use this Software during the active Annual Software License
period, pursuant to the limitations set forth herein.
Limitations. Customer’s full use of this Software is limited to the number of authorized licenses Customer has
purchased. Customer agrees to use reasonable efforts to protect the Software from any unauthorized use, modification,
reproduction, distribution and publication. Customer may not transfer any of the rights granted to Customer hereunder,
unless Customer receives prior written authorization from Gaia and only if Customer transfers all of Customer’s rights
granted hereunder, without retaining any of the Software, or any copies thereof or any rights thereto. Except as
otherwise expressly provided under this End User Agreement, Customer shall have no right, and Customer specifically
agrees not to:
(i) make error corrections to or otherwise modify or adapt the Software nor create derivative works based upon
the Software, or to permit third parties to do the same; or
(ii) copy, in whole or in part, decompile, translate, reverse engineer, disassemble or otherwise reduce the
Software to human-readable form.
Upgrades and Additional Copies. For purposes of this End User Agreement, “Software” shall also include (and the
terms and conditions of this End User Agreement shall apply to) any upgrades, updates, bug fixes or modified versions
(collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by Gaia or an authorized
distributor for which Customer has paid the applicable license fees and holds the corresponding software keys.
Notwithstanding the foregoing, Customer acknowledges and agrees that Gaia shall have no obligation to provide any
Upgrades under this End User Agreement. If Upgrades are provided, Customer acknowledges and agrees that:
(i) Customer has no license or right to use any such additional copies or Upgrades unless Customer, at the time of
acquiring such copy or Upgrade, already holds a valid license to the original Software.
Notices of Proprietary Rights. Customer agrees to maintain and reproduce all trademark, copyright, patent, and
notices of other proprietary rights on all copies, in any form, of the Software in the same form and manner that such
trademark, copyright, patent, and notices of other rights are included on the Software. Except as expressly authorized
in this End User Agreement, Customer shall not make any copies or duplicates of any Software without the prior
written permission of Gaia. Customer may make such backup copies of the Software as may be necessary for
Customer’s lawful use, provided Customer affixes to such copies all trademark, copyright, patent, and notices of other
proprietary rights that appear on the original.
Proprietary Rights. Customer shall own the physical media on which the Software is recorded, but the Software is and
will remain the sole and exclusive property of Gaia. Gaia’s rights under this Section will include, but not be limited to:
(i) all copies of the Software, in whole and in part; and (ii) all Intellectual Property Rights in the Software. For
purposes herein, “Intellectual Property Rights” means patent rights (including patent applications and disclosures),
copyrights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, rights of
priority and any other intellectual property right recognized in any country or jurisdiction in the world. “Moral Rights”
means any right to claim authorship to or to object to any distortion, mutilation, or other modification or other
PREFACE - END USER SOFTWARE LICENSE AGREEMENT
derogatory action in relation to a work, whether or not such would be prejudicial to the author’s reputation, and any
similar right, existing under common or statutory law or any country in the world or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a “moral right”.
Confidential Information. Customer agrees that Customer will not disclose or, except as expressly permitted in this
End User Agreement, use any Software or other technical information disclosed to Customer by Gaia (“Confidential
Information”), and that Customer will take all reasonable measures to maintain the confidentiality of all Confidential
Information in Customer’s possession or control, which will in no event be less than the measures Customer uses to
maintain the confidentiality of Customer’s own information of equal importance. Confidential Information will not
include information that: (i) is in or enters the public domain without breach of this End User Agreement; (ii)
Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation;
or (iii) Customer develops independently, which Customer can prove with written evidence. Customer acknowledges
that the Software is a trade secret of Gaia, the disclosure of which would cause substantial harm to Gaia that could not
be remedied by the payment of damages alone. Accordingly, Gaia will be entitled to preliminary and permanent
injunctive relief and other equitable relief for any breach of this Section.
Limited Warranty. Gaia warrants that the Software will substantially conform to its published specifications for a
period of thirty (30) days from the later of receipt of the Software or receipt of access to the Software. Gaia further
warrants that the media on which the Software is contained will be free from defects for a period of thirty (30) days
from the later of receipt of the Software or receipt of access to the Software. This limited warranty extends only to
Customer as the original licensee. Provided that (a) Customer has notified Gaia of such substantial non-conformance
or defect during the applicable warranty period, and (b) Gaia has confirmed such Software or media to be substantially
non-conforming or defective, as Customer’s sole and exclusive remedy and Gaia’s and its suppliers’ entire liability
under this limited warranty, Gaia will, at its option, repair, replace, or refund the Software free of charge. Except as
expressly provided in this End User Agreement, the Software is provided “AS IS” without warranty of any kind. Gaia
does not warrant that the Software is error free or that Customer will be able to operate the Software without problems
or interruptions. Gaia reserves the right to charge additional fees for repairs or replacements performed outside of the
limited warranty period.
This warranty does not apply if the Software (i) is licensed for beta, evaluation, testing or demonstration purposes for
which Gaia does not receive a license fee, (ii) has been altered, except by Gaia, (iii) has not been installed, operated,
repaired, or maintained in accordance with instructions supplied by Gaia, (iv) has been subjected to abnormal physical
or electrical stress, misuse, negligence, or accident, or (v) is used in ultrahazardous activities.
If the dongle license key becomes damaged, replacement keys can be obtained for a $150 fee. To obtain a replacement
key for a damaged key, Customer must send the damaged key to Gaia, or a Gaia authorized reseller. In the case of a
lost dongle license key, Customer will be charged the full list price of the Software to replace the lost dongle license
The authorized distributors of the Software, who are appointed by Gaia, are not permitted to alter the terms of this End
User Agreement in any manner.
Disclaimer. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS,
REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE,
OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL GAIA OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA,
OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER
CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE EVEN IF GAIA OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL GAIA’S OR ITS SUPPLIERS’ TOTAL LIABILITY
TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED
THE PRICE PAID BY CUSTOMER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVESTATED
WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS
DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
Term and Termination. This End User Agreement is effective until terminated. Customer’s license rights under this
End User Agreement will terminate immediately without notice from Gaia if Customer fails to comply with any
provision of this End User Agreement. Upon termination, Customer must destroy all copies of Software and the
corresponding keys in its possession or control.
Compliance With Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with
its activities under this End User Agreement. Without limiting the foregoing, Customer acknowledges and agrees that
the Software, including technical data, is subject to United States export control laws, including the United States
Export Administration Act and its associated regulations, and may be subject to export or import regulations in other
countries. Customer agrees to comply strictly with all such regulations and acknowledges that Customer has the
responsibility to obtain licenses to export, re-export, or import the Software.
Restricted Rights. The Software shall be classified as “commercial computer software” as defined in the applicable
provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of
Defense (DoD) FAR Supplement (the “DFARS”). The parties acknowledge that the Software was developed entirely
at private expense and that no part of the Software was first produced in the performance of a Government contract. If
the Software is supplied for use by DoD, the Software is delivered subject to the terms of this End User Agreement and
either (i) in accordance with DFARS 227.702-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with
DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for use by a Federal agency
other than DoD, the Software is restricted computer software delivered subject to the terms of this End User Agreement
and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III), as applicable.
General. This End User Agreement will bind and inure to the benefit of each party’s successors and assigns, provided
that Customer may not assign or transfer this End User Agreement, in whole or in part, without Gaia’s written consent.
This End User Agreement shall be governed by and construed in accordance with the laws of the State of California,
United States of America, as if performed wholly within the state and without giving effect to the principles of conflict
of law. No failure of either party to exercise or enforce any of its rights under this End User Agreement will act as a
waiver of such rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of this End
User Agreement shall remain in full force and effect. This End User Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior
agreements, communications, and understandings (both written and oral) regarding such subject matter.