EVENTS2HVAC SOFTWARE SUBSCRIPTION TERMS
Last Updated: January 1st 2026
These Events2HVAC Software Subscription Terms (“Subscription Terms”) govern the purchase, access to, and use of the Events2HVAC software and related services. These Subscription Terms are provided by Streamside Solutions, LLC, a Colorado limited liability company with principal offices at 363 E. Elkhorn Ave, Suite 313, Estes Park, CO 80517-1576 (“Provider” or “STREAMSIDE”), and apply to any entity purchasing, installing, accessing, or using the Software (“Customer”).
These Subscription Terms apply to commercial software subscriptions and services and do not govern general use of the public Events2HVAC website, which is governed separately by the Website Terms of Use.
ACCEPTANCE OF SUBSCRIPTION TERMS
BY ISSUING A PURCHASE ORDER, MAKING PAYMENT, INSTALLING, ACCESSING, OR USING THE SOFTWARE OR ANY RELATED SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE LEGALLY BOUND BY THESE SUBSCRIPTION TERMS AND THE EVENTS2HVAC END USER LICENSE AGREEMENT (“EULA”).
Each renewal or extension of a subscription by Purchase Order or payment constitutes acceptance of the then-current Subscription Terms. If Customer does not agree, Customer must not install or use the Software.
RECITALS
A. Streamside Solutions, LLC (“STREAMSIDE”) has developed certain software, commercially known as Events2HVAC, which includes the Events2HVAC software and software owned by third parties (collectively, the “Software”);
B. The Software is sold as an annual software subscription;
C. Provider is authorized to provide professional services in connection with the Software;
D. Customer has purchased or renewed a subscription to the Software; and
E. Customer has executed or agreed to the End User License Agreement for the Software, which is presented electronically and incorporated herein as Appendix C.
EFFECTIVE DATE
The “Effective Date” of these Subscription Terms is the earliest of:
(a) the date of Customer’s Purchase Order;
(b) receipt of payment by Provider for the applicable subscription period;
(c) first installation of the Software; or
(d) first use of the Software.
1. Configuration Services
Provider will provide Customer with “Configuration Services,” which consist of installation and setup of software, making interface connections to the required reservation system(s) and HVAC systems, and equipment zone mapping. Customer’s IT department must provide the network access, firewall rules, and credentials for the software to communication to the necessary systems.
Remote access is required to perform these services.
Details of services can be found in Appendix A – On-Premise Software and Professional Services.
2. Maintenance Services
Provider will provide Customer with “Maintenance Services,” which consist of regular updates, software corrections, bug fixes, and new functionality to the software, which may include service packs to correct defects and add functionality (collectively “Updates”). Notification of Updates and the Updates themselves will be provided in the form and manner as determined by Provider in Provider’s sole discretion, provided that on or immediately after the Effective Date, Customer shall provide the contact information (including without limitation email addresses and telephone numbers) for “contact individual” at Customer for purposes of notification of updates. Contact information for contact individuals will be modified upon request of the Customer. Notwithstanding the foregoing, Provider shall have no obligation to provide any Maintenance Services if (a) the Software has been modified, changed, or altered by anyone other than the Provider or STREAMSIDE, except as expressly authorized by STREAMSIDE in writing; (b) the operating environment, including both hardware and systems software, does not meet the Provider’s recommended specifications; (c) the computer hardware is not in good operational order or is not installed in a suitable operating environment; or (d) all Annual Subscription Fees (defined below) due to the Provider have not been paid.
Details of services can be found in Appendix A – On-Premise Software and Professional Services.
3. Support Services
Provider will provide Customer with “Support Services,” which consist of providing email ticket support for support incidents in the current term. Support can be in the form of email, web-based support tickets, phone or remote screen sharing. Each incident created will be tracked in a support ticket system.
An incident is defined as a bug, question or problem related to the installed software or the operation thereof.
4. SUBSCRIPTION FEE AND EXPENSES
(a) Annual Subscription Fee
Customer will pay to Provider an annual non-refundable fee as described in Appendix B – Fees and Pricing (the “Annual Subscription Fee”). The Annual Subscription Fee shall be paid in advance and shall be due on the Effective Date and for each subscription term purchased by Customer.
For Customers that renew a subscription by issuing a new Purchase Order or making payment for a subsequent subscription term, the Annual Subscription Fee for such renewal term shall be due on the applicable Effective Date of that renewal term.
Provider shall have the right to change the amount of the Annual Subscription Fee at any time upon sixty (60) days’ advance notice, provided that any such change shall apply only to future subscription terms and not to any then-current paid subscription term.
Customer is responsible for the payment of any taxes assessed in connection with payments due under these Subscription Terms, except for any tax based solely on Provider’s net income.
(b) Changes to Zone License Count
Customer may add zones to the subscription license during a subscription term at any time. Customer will pay a pro-rated cost for the additional zones based on the annual subscription fee per zone in effect at the time the adjustment is made to the license.
For zones removed during a subscription term, the subscription cost will be adjusted at the start of the next subscription term based on the current zone license count.
(c) Failure to Pay Annual Subscription Fee
Failure to pay any Annual Subscription Fee when due shall have the following effects:
(i) Customer’s Subscription Services shall be suspended or terminated, and no further Updates or Support will be provided to Customer for the Events2HVAC software by either STREAMSIDE or Provider;
(ii) Provider shall have the right, in its sole discretion, to discontinue providing any and all support for the Software;
(iii) Provider shall have the right, in its sole discretion, to permit Customer to reinstate its Subscription Services after failure to timely pay Annual Subscription Fees; and
(iv) The server software will cease to operate after a sixty (60) day grace period following the end of the applicable subscription term for which payment has not been received. It is Customer’s responsibility to ensure that any systems previously controlled by the Software are transitioned to an alternative method of control.
5. SUBSCRIPTION TERM AND TERMINATION
(a) Subscription Term
Each subscription term shall commence on the applicable Effective Date and shall continue for the subscription period purchased by Customer (the “Subscription Term”).
Subscriptions do not automatically renew. Nothing in these Subscription Terms obligates Customer to renew any subscription or to purchase any future subscription term. Each renewal or extension of a subscription requires Customer’s affirmative action, which may include issuance of a Purchase Order, payment of an invoice, or other written or electronic confirmation accepted by Provider.
If Customer affirmatively elects to opt into auto-renewal in writing (which may include an Order, renewal form, or electronic selection), the subscription shall automatically renew for successive subscription terms of equal length unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term. Customer may revoke an auto-renewal election at any time by providing written notice, effective at the end of the then-current Subscription Term.
These Subscription Terms shall remain in effect and shall govern each current and future Subscription Term purchased by Customer unless terminated as provided herein.
(b) Termination
These Subscription Terms shall terminate immediately upon the earliest of the following events:
(i) Upon termination or expiration of Customer’s right to use the Software under the End User License Agreement with STREAMSIDE or otherwise;
(ii) Upon written notice by Customer to Provider or STREAMSIDE that Customer has ceased all use of the Software (in which case such notice shall be deemed Customer’s notice of termination of these Subscription Terms);
(iii) If Customer ceases business operations in the ordinary course, becomes insolvent, files or has filed against it a petition in bankruptcy (or any similar petition under any insolvency law of any jurisdiction), proposes any dissolution, liquidation, financial reorganization, or recapitalization with creditors, or if a receiver, trustee, custodian, or similar agent is appointed or takes possession of any property or business of Customer; or Upon thirty (30) days’ advance written notice by either Party if the other Party has breached these Subscription Terms and has not cured such breach within such notice period.
Upon termination or expiration of a Subscription Term for any reason, Provider’s obligations (including providing Maintenance Services, Updates, and Support Services) to Customer under these Subscription Terms shall cease, and Customer must cease all use of the Software unless and until a new Subscription Term is purchased.
6. Disclaimer of Warranties and Remedies
THE UPDATES ARE PROVIDED “AS IS” AND CUSTOMER RECEIVES NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES. PROVIDER, STREAMSIDE AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE CONCERNING THE UPDATES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OR THE RESULTS TO BE OBTAINED FROM USE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. PROVIDER, STREAMSIDE AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES THAT MAY BE IMPLIED FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. FURTHER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STREAMSIDE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF THE UPDATES, AND SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1) THE UPDATES WILL OPERATE IN COMBINATION WITH OTHER ITEMS, EQUIPMENT, SOFTWARE, SYSTEMS OR DATA, (2) THE OPERATION OF THE UPDATES WILL BE UNINTERRUPTED OR ERROR FREE, OR (3) ERRORS IN THE UPDATES, IF ANY, WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER, STREAMSIDE AND THEIR SUPPLIERS, OR THEIR AGENTS OR EMPLOYEES SHALL CREATE OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND. THE UPDATES ARE PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK OF SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH CUSTOMER.
7. Limitation of Liability and Indemnification.
IN NO EVENT SHALL PROVIDER, STREAMSIDE, THEIR RESPECTIVE AFFILIATES, SUPPLIERS OR THIRD PARTY LICENSORS, OR THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENT, EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER IT ARISES, INCLUDING, BUT NOT LIMITED TO, THE USE BY customer OF THE updates, WHETHER FOR BREACH OF CONTRACT OR IN TORT, EVEN IF they had been ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS PROVIDER, STREAMSIDE, THEIR RESPECTIVE AFFILIATES, SUPPLIERS OR THIRD PARTY LICENSORS AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENT, EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS AGAINST ANY LOSS, DAMAGE, EXPENSE, OR COST, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY CLAIM, DEMAND, PROCEEDING OR LAWSUIT RELATED TO CUSTOMER’S UNAUTHORIZED USE OR MISUSE OF THE UPDATES.
8. Ownership.
All Updates provided by Provider under this Subscription Agreement, and any intellectual property rights embodied therein, are and shall remain the exclusive property of STREAMSIDE. Any Updates provided under this Subscription Agreement shall be deemed “Software” as defined under, and subject to the terms and conditions of, Customer’s end user license agreement with STREAMSIDE regarding the use of the Software.
9. Third Party Beneficiary.
The parties acknowledge and agree that STREAMSIDE shall be deemed to be an intended and named third party beneficiary of this Subscription Agreement.
10. General
(a) Entire Agreement
Each Party acknowledges that these Subscription Terms constitute the complete and exclusive statement of the agreement between the Parties relating to the subject matter hereof, and supersede and merge all prior proposals, understandings, and all other agreements, oral and written, between the Parties relating to these Subscription Terms.
These Subscription Terms may not be modified or altered except by a written instrument executed by Provider, or as otherwise expressly permitted herein. For purposes of these Subscription Terms, acceptance by Customer may be evidenced by issuance of a Purchase Order, payment, installation, access, or use of the Software as set forth herein.
(b) Governing Law and Venue
These Subscription Terms and performance hereunder shall be governed by and construed in accordance with the substantive laws of the State of Colorado with respect to claims governed by state law and the laws of the United States with respect to claims arising under the laws of the United States, without regard to conflicts of laws principles and excluding the Convention on Contracts for the International Sale of Goods.
Any action arising from or relating to these Subscription Terms or the conduct of the Parties pursuant hereto shall be commenced and heard solely within a federal or state court of competent jurisdiction found within the boundaries of the State of Colorado, and STREAMSIDE and Customer each consent to personal jurisdiction and venue in any such court.
(c) Assignment
Customer may not subcontract, assign, or transfer its rights, duties, or obligations under these Subscription Terms to any person or entity, in whole or in part, without the prior written consent of Provider. These Subscription Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and permitted assigns.
(d) Waiver
The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
(e) Severability
Should any term or provision of these Subscription Terms be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable, or contrary to law or equity, the offending term shall be modified and limited (or, if strictly necessary, deleted) only to the extent required to conform to the requirements of law, and the remainder of these Subscription Terms (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law.
(f) Acceptance and Binding Effect
Customer acknowledges that it has read these Subscription Terms, understands them, and agrees to be legally bound by them upon issuance of a Purchase Order, payment of applicable fees, installation, access, or use of the Software.
(g) Binding on Successors
These Subscription Terms shall be binding upon Customer and its successors and permitted assigns.
Appendix A
On-Premise Software and Professional Services
The annual Events2HVAC Subscription Fee includes the following software components and professional services.
1. Software License
Events2HVAC Professional Edition Software License.
One instance of the Events2HVAC Software is licensed for installation on Customer’s on-premise server or another approved hosting platform. The license includes both server and client applications. The Software may optionally be installed as client-only software for remote PC access.
2. Scheduling System Integrations
2.1 Supported Room-Scheduling Systems.
All supported event providers for compatible room-scheduling systems are included. One or more scheduling systems may be connected. Switching from one scheduling system to another, or adding additional supported scheduling systems, does not affect pricing unless the number of zones controlled by the Software changes.
2.2 A current list of supported room-scheduling systems is available at:
https://www.events2hvac.com/event-providers
3. Control System Integrations
3.1 Supported Building Automation and Control Systems.
All supported device interfaces for building automation systems, including wired and wireless thermostats, lighting controls, and security or access-control systems, are included. One or more control systems may be connected. Switching control systems or adding supported systems does not affect pricing unless the number of zones controlled by the Software changes.
3.2 Current lists of supported control systems are available at:
https://www.events2hvac.com/device-interfaces
https://www.events2hvac.com/supported-thermostats
4. Zone-Based Licensing
Zone License Model.
The subscription includes an annual license for a specific number of zones controlled by Events2HVAC. Any licensed zones may be controlled, and the specific zones controlled may be changed as needed.
Additional zones may be licensed during a subscription term at a pro-rated rate. Reductions in the number of licensed zones will be reflected at the start of the next subscription term.
5. Professional Services
5.1 Implementation and Configuration.
Professional services include software installation, setup, and configuration via remote access. A Streamside Solutions engineer will lead the implementation with support from Customer’s on-site staff. Remote access is required.
5.2 Software Maintenance Updates.
Periodic software maintenance updates are provided via remote access. Updates are prioritized based on improvements in each release and Customer needs. Software will be updated at least once per year. Customers that do not permit remote access may elect to install updates independently.
5.3 Re-Configuration Services.
Re-configuration services include changes due to switching scheduling systems or control systems, adding or removing zones, adjusting pre-start times, and other configuration adjustments. These services are performed via remote access.
5.4 Performance Monitoring.
Performance of the Software may be monitored through outbound notifications for general system health, fault detection, and analysis. Streamside Solutions may notify designated facility contacts when a critical outage or abnormal condition is detected, such as prolonged scheduling system or HVAC interface downtime.
5.5 Training.
Remote, web-based training is provided during implementation for up to four (4) hours for designated Customer personnel.
6. Professional Service Requirements
6.1 Remote Management.
Remote access is required to take advantage of the professional services described above. Unattended remote access is preferred, as it reduces the need for coordinated attended sessions. Commonly supported remote access methods include unattended remote access software, VPN access provided by Customer, or Remote Desktop Protocol (RDP), subject to Customer security policies.
6.2 Service Notifications.
Streamside Solutions will notify designated Customer personnel when service disruptions may occur, such as during software updates or configuration changes.
6.3 Email Notifications.
Outbound email notifications from the Software to Streamside Solutions are required to support daily reports, error and fault notifications, and system warnings.
6.4 Outbound API Connectivity.
An outbound firewall rule permitting communication with Streamside Solutions’ API is required for license management and for future features such as analytics, fault detection, system health monitoring, and performance reporting.
6.5 IT Configuration Responsibilities.
Customer’s IT department is responsible for providing and maintaining a virtual or physical server environment to host Events2HVAC, including installation of required prerequisite software. Customer is responsible for configuring firewall and network rules necessary to allow communications with scheduling systems, control systems, and other required interfaces.
6.6 HVAC Integration Responsibilities.
Customer and/or Customer’s HVAC vendor is responsible for providing and identifying the necessary integration points within the HVAC system. All integration points must be created and tested by the HVAC vendor prior to zone mapping by Streamside Solutions.
6.7 Scheduling Coordination.
Installation and configuration of the Software must be scheduled in advance and coordinated with Streamside Solutions.
7. On-Site Services
On-site services are not included with the Events2HVAC Subscription but may be negotiated separately by written agreement.
APPENDIX B
FEES AND PRICING
1. Annual Subscription Fee
Customer will pay to Provider an annual, non-refundable subscription fee (the “Annual Subscription Fee”) based on the number of zones licensed by Customer for use with the Events2HVAC Software.
The applicable Annual Subscription Fee, zone count, and subscription period are specified in the applicable quote, Purchase Order, invoice, or other ordering document accepted by Provider (each, an “Order”), and are incorporated into these Subscription Terms by reference.
Unless otherwise expressly agreed in writing by Provider, the Annual Subscription Fee is due in advance prior to the start of each subscription term.
2. Changes to Zone License Count
Customer may increase the number of licensed zones during an active subscription term. Any such increase will be billed on a pro-rated basis using the then-current annual per-zone subscription rate, effective as of the date the additional zones are licensed.
Reductions in the number of licensed zones during a subscription term will not result in a refund or credit during the then-current subscription term. Any such reduction will be reflected in the applicable Annual Subscription Fee for the next subscription term purchased by Customer.
3. Support Hourly Rate
On-premise support services and support services not included as part of standard maintenance and configuration (including, without limitation, new interface development, custom requirements, migrations, or other non-routine services) may be provided at Provider’s then-current hourly rates, plus any reasonable related expenses.
On-premise support is not included unless expressly agreed in writing. All non-standard support services and related fees must be approved by Customer in advance.
Appendix C
End User License Agreement (as Contained in Product)
STREAMSIDE SOLUTIONS, LLC ("STREAMSIDE") HAS DEVELOPED A SOFTWARE APPLICATION FOR INTEGRATING ROOM SCHEDULES TO BUILDING AUTOMATION SYSTEMS KNOWN AS “EVENTS2HVAC.” STREAMSIDE IS WILLING TO PROVIDE A LIMITED LICENSE OF THE SOFTWARE THAT ACCOMPANIES THIS END USER LICENSE AGREEMENT TOGETHER WITH THE PRINTED OR ONLINE DOCUMENTATION FURNISHED BY STREAMSIDE IN CONJUNCTION WITH IT TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE "I ACCEPT..." BUTTON OR CHECKBOX.
BY CLICKING ON THE "I ACCEPT..." BUTTON OR CHECKBOX YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. SUCH ACCEPTANCE IS EITHER ON YOUR OWN BEHALF, OR ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT (‘CORPORATE LICENSEE’). IN THIS LICENSE AGREEMENT, ‘YOU’ INCLUDES ANY CORPORATE LICENSEE. YOU AGREE THAT THIS AGREEMENT IS AS ENFORCEABLE AS ANY WRITTEN NEGOTIATED AGREEMENT MANUALLY SIGNED BY YOU AND THAT BY CLICKING ON THE "I ACCEPT..." BUTTON OR CHECKBOX BELOW, YOU ARE PROVIDING YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT. CLICK ON THE "CANCEL" BUTTON TO DISCONTINUE THE INSTALLATION PROCESS. THE ACCEPTANCE OF THIS AGREEMENT IS REQUIRED FOR USE OF THE SOFTWARE.
1. LICENSE GRANTS AND RESTRICTIONS.
1.1 Subject to the terms and conditions contained herein, STREAMSIDE hereby grants you a non-exclusive, limited license to install, use and execute a single copy of the Events2HVAC software (the “Software”) on a single personal computer or server, which is identified by serial number or other means during the installation process (the "Designated System"), and to use the documentation furnished by STREAMSIDE in conjunction with it, solely for your internal business use. You may transfer and use the Software on a backup computer system you own or lease if, and only for so long as, the Designated System is (i) inoperative or (ii) unavailable due to regularly scheduled maintenance, upon issuance by STREAMSIDE of a backup license key. For purposes of this Agreement, the “Software” shall be deemed to include the application program, related source code, and software owned by third parties (“Third Party Software”) that are provided to you along with the Events2HVAC software.
1.2 No Other Rights Granted. Apart from the license expressly granted herein, no license or other right is granted by STREAMSIDE to you under this Agreement, either directly or by implication, estoppel, or otherwise (including, but not limited to, the right to prepare derivative works of the Software). You shall have no right or access to the source code of the Software. All rights not specifically granted to you in this Agreement are reserved by STREAMSIDE.
2. YOUR RESPONSIBILITIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YOU SHALL (I) USE ALL COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT YOUR EMPLOYEES COMPLY WITH THE TERMS OF THIS AGREEMENT; (II) NOT MODIFY, ENHANCE, DECRYPT, EXTRACT, ADAPT, TRANSLATE, ALTER, DELETE, DISASSEMBLE, DECOMPILE OR OTHERWISE REVERSE ENGINEER THE SOFTWARE OR ANY PART THEREOF, OR ANY APPLICATION ENABLER OR GRANT ANY OTHER PERSON OR ENTITY THE RIGHT TO DO SO OR TAKE ANY ACTION THAT WOULD ASSIST ANY OTHER PERSON OR ENTITY IN DOING SO AND WILL PROMPTLY NOTIFY STREAMSIDE OF ANY INFORMATION THAT ANY OTHER PERSON OR ENTITY IS OR IS ATTEMPTING TO COPY, REVERSE ENGINEER, DISASSEMBLE, DECOMPILE, TRANSLATE OR MODIFY THE SOFTWARE ; (III) NOT INSERT, DELETE, REPLACE, CHANGE OR OTHERWISE ALTER ANY FILES IN THE SOFTWARE OR APPLICATION ENABLER; (IV) NOT MODIFY, CHANGE, PREPARE DERIVATIVE WORKS OF OR OTHERWISE ALTER ANY BINARY CODE FILES INCLUDED WITH THE SOFTWARE; (V) NOT LOAN, RENT, LEASE, GIVE, SUBLICENSE, TRANSFER, PUBLISH, DISCLOSE, DISPLAY, PROVIDE ACCESS TO, OR OTHERWISE MAKE AVAILABLE THE SOFTWARE, IN WHOLE OR IN PART, TO ANY OTHER THIRD PARTY OR ENTITY; (VI) NOT MODIFY ANY APPLICATION PROGRAMMING INTERFACE, INCLUDING MODIFYING ANY APPLICATION PROGRAMMING INTERFACE BY CREATING ADDITIONAL CLASSES WITHIN ANY INTERFACE OR OTHERWISE CAUSING THE ADDITION TO OR MODIFICATION OF THE CLASSES IN AN INTERFACE, (VII) NOT INCORPORATE ANY CODE INCLUDED WITH THE SOFTWARE OR ANY DOCUMENTATION IN ANY DEVELOPER PRODUCT, AND (VIII) OBTAIN AND MAINTAIN, AT YOUR OWN EXPENSE, ALL COMPUTER HARDWARE, SOFTWARE, AND OTHER COMMUNICATION EQUIPMENT NECESSARY TO USE THE SOFTWARE.
3. TECHNICAL SUPPORT, SOFTWARE MAINTENANCE AND TRAINING. Neither STREAMSIDE nor any of its affiliates, distributors or resellers shall have any obligation to provide technical support, training or software maintenance services to you in connection with the Software, except as may be provided under a separate agreement between any such party and you. You may purchase maintenance services for the Software from STREAMSIDE or its resellers under a separate maintenance agreement, which maintenance services may include providing you with regular updates, software corrections, bug fixes, and new functionality to the Software, which may include service packs to correct defects and add functionality (collectively “Updates”). Any such Updates provided to you are and shall are and shall remain the exclusive property of STREAMSIDE. Such Updates shall be considered Software, and subject to the terms and conditions in this Agreement.
4. LICENSE FEES. The license fees paid by or for you to STREAMSIDE, its affiliates, distributors or resellers, are paid in consideration of the rights granted under this Agreement.
5. OWNERSHIP AND CONFIDENTIALITY.
5.1 Ownership by STREAMSIDE. STREAMSIDE retains all right, title and interest, in and to the Software (and any portions thereof), other than Third Party Software. You acknowledge that the Software uses trademarks, copyrights, trade secrets and other proprietary material the rights to which are owned or licensed by STREAMSIDE, its affiliates, third party licensors or suppliers, and that such proprietary rights are protected by law, including U.S. copyright laws, patent laws and international treaty provisions. You shall not have or obtain any right, title, or interest to the Software except as provided in this Agreement, and further shall secure and protect the Software consistent with the maintenance of STREAMSIDE's proprietary rights therein. You agree that you shall not contest or challenge, or take any action inconsistent with or that may damage or impair STREAMSIDE's ownership or rights in and to the Software, and further that you shall not contest or challenge, or take any action inconsistent with, or that may damage or impair the ownership or intellectual property rights of, STREAMSIDE in the Software, or of STREAMSIDE's licensors with respect to the Third Party Software. You shall not use the Software except as is expressly authorized in this Agreement.
5.2 Confidentiality. You acknowledge that the Software contains valuable trade secrets of STREAMSIDE and you agree to use your best efforts to maintain the confidentiality of the Software using at least the same degree of care you use with your own confidential information, but no less than reasonable care.
5.3 Third-Party Code. Additional copyright notices and license terms applicable to portions of the Software are set forth in the readmeLicenses.txt file provided with the Software. In addition to any terms and conditions of any third-party open source/freeware license identified in the readmeLicenses.txt file, the disclaimer of warranty and limitation of liability provisions contained below in paragraph 6 of this Agreement shall apply to all third party code or software contained in the Software.
6. WARRANTIES AND LIMITATIONS.
6.1 Disclaimer of Software Warranty. THE SOFTWARE IS LICENSED “AS IS” AND YOU RECEIVE NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES. STREAMSIDE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE CONCERNING THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OR THE RESULTS TO BE OBTAINED FROM USE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. STREAMSIDE EXPRESSLY DISCLAIMS ANY WARRANTIES THAT MAY BE IMPLIED FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. FURTHER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STREAMSIDE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF THE SOFTWARE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1) THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER ITEMS, EQUIPMENT, SOFTWARE, SYSTEMS OR DATA, (2) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (3) ERRORS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STREAMSIDE, OR ITS AGENTS OR EMPLOYEES SHALL CREATE OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK OF SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU.
6.2 Limitation of Liability. IN NO EVENT SHALL STREAMSIDE, ITS AFFILIATES, SUPPLIERS OR THIRD PARTY LICENSORS, OR THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENT, EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER IT ARISES, INCLUDING, BUT NOT LIMITED TO, THE USE BY YOU OF THE SOFTWARE, WHETHER FOR BREACH OF CONTRACT OR IN TORT, EVEN IF STREAMSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Limitation of Remedies. NOTWITHSTANDING ANY TERM OR PROVISION TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL STREAMSIDE'S MONETARY LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, TO YOU EXCEED $100.00.
7. ASSURANCES BY YOU. There can be no assurances whatsoever that control systems such as the Software will protect any individual or his or her property from harm. Appropriate safety precautions must always be taken when reacting to information generated by software in connection with the operation or maintenance of equipment connected to the Software. STREAMSIDE ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY INJURY OR DAMAGE TO ANY PERSONS OR PROPERTY RESULTING FROM THE USE BY YOU OF THE SOFTWARE. Further, you represent and warrant that you will take appropriate precautions, establish appropriate procedures and post appropriate notices to ensure that persons and property are not harmed in the event of an error, malfunction or unexpected operation of the Software.
8. HIGH RISK APPLICATIONS. You will make reasonable business efforts to ensure that the Software is not used in any application in which the failure of the Software could lead to death, personal injury or severe physical or property damage, including, without limitation, environmental damage, (collectively, "High-Risk Applications"), including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation or aircraft communication systems, air traffic control, weapon systems and direct life support machines, unless otherwise permitted by STREAMSIDE in writing. Without limiting any disclaimer of any express or implied warranty under this Agreement, STREAMSIDE expressly disclaims any express or implied warranty or condition of fitness of the Software for High-Risk Applications.
9. INDEMNIFICATION. You shall indemnify and hold harmless STREAMSIDE, its affiliates, suppliers or third party licensors, or their respective members, officers, directors, shareholders, agent, employees, representatives, successors and assigns, from and against all losses, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney's fees) arising directly or indirectly out of third party claims concerning (i) a breach of any of your obligations, covenants, representations or warranties contained herein; (ii) your selection of, transactions and/or agreements with any party that is a STREAMSIDE reseller or distributor, systems integrator or trainer, or any other third party; (iii) any derivative work or product developed by you that is based on the APIs or Example Code, as permitted under this Agreement; (iv) any combination of the Software, or any component of it, with any product, equipment, device, software, hardware, system, data or other technology not supplied by STREAMSIDE, (v) the negligence or intentional misconduct of you or your officers, employees, agents, contractors or customers, or (vi) any property or economic damages or personal injury or death arising from or related to the use of the Software. You agree not to interpose any cross-claim, third party claim or similar claim against STREAMSIDE based on a claim, suit, action or proceeding threatened or commenced against you related to the Software and arising out of any matter other than a matter, if any, for which STREAMSIDE has agreed to indemnify you under a separate agreement signed by STREAMSIDE.
10. TERM AND TERMINATION.
10.1 Term. This Agreement is effective upon your clicking the "I Accept..." button or checkbox and shall continue until terminated.
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Termination. You may terminate this Agreement at any time by returning the Software and all copies and extracts to STREAMSIDE. STREAMSIDE may terminate this Agreement upon a material or continuing breach of this Agreement by you by the giving of 30 days prior written notice of termination, stating the cause therefore, with termination becoming effective at the close of said 30-day term if the breach is not then cured to the satisfaction of STREAMSIDE.
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No Refunds. Notwithstanding the reason for termination of this Agreement by you or STREAMSIDE, under no circumstances will STREAMSIDE be obligated to provide any refunds of any portion of any amounts paid by you in connection with this Agreement or the Software.
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Survival. All provisions of this Agreement except for rights granted under Section 1 will survive termination and continue in effect.
11. TRADEMARKS AND PROPRIETARY NOTICES.
11.1 Trademarks. Under no circumstances may you use any trademark or service mark of STREAMSIDE to identify, or otherwise in connection with, goods or services provided by you except as expressly agreed to by STREAMSIDE in writing.
11.2 Proprietary Notices. You acknowledge that the Software may contain certain proprietary notices (included but not limited to trademark and copyright notices), trademarks, service marks, and logos of STREAMSIDE, its affiliates, suppliers, third party licensors and other third parties, and you agree not to remove, modify (including adding to), minimize, obscure or block such notices, trademarks, service marks or logos.
12. GENERAL TERMS.
12.1 Assignment. You may assign this Agreement or your rights and obligations under this Agreement to a purchaser of the hardware on which the Software is installed, provided (i) you provide such purchaser with a copy of this Agreement and (ii) the purchaser agrees in writing to comply with all of the terms and conditions of this Agreement. STREAMSIDE may assign this Agreement without your consent.
12.2 Export. 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. You agree to comply strictly with all such regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import the Software. The Software may not be used, sold, resold, sublicensed, diverted, transferred, reshipped, or otherwise exported or re-exported: (i) in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies; (ii) in, into or through any country for which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the United States Department of Commerce's Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury's Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government or any of its agencies as a party with which it is unlawful to do business.
12.3 Equitable Relief. You acknowledge that any breach of your obligations hereunder with respect to the Software or the confidential information of STREAMSIDE, including, without limitation, Section 5.1 and 5.2 above, will cause STREAMSIDE irreparable injury for which it has no adequate remedy at law. You further agree that STREAMSIDE will be entitled to seek and obtain equitable relief, including preliminary injunctions and temporary restraining orders, to prevent any unauthorized use of the Software and confidential information, without posting of bond or other security, in addition to all other remedies available to it under this Agreement or other applicable law.
12.4 Entire Agreement. Except as expressly set forth in this Agreement, this Agreement comprises the entire agreement between the parties relating to its subject matter and this Agreement supersedes all prior agreements and understandings, written or oral, express or implied. This Agreement can be amended or modified only by a writing executed in advance by duly authorized representatives of each of the parties hereto. In the event any foreign ministry or other governmental entity or agency makes any changes, deletions or modifications to this Agreement, holds any provision herein unenforceable or imposes any conditions or restrictions on either party to this Agreement which affects its ability to fully perform, STREAMSIDE shall have the right to immediately terminate this Agreement. By clicking the I ACCEPT button, you represent and warrant that all consents, approval or authorizations of third parties, foreign ministries or any governmental entities or agencies, required as a condition or otherwise necessary for you to enter into and perform its obligations under this Agreement have been duly obtained.
12.5 Waiver. A waiver of any breach of default of this Agreement shall not create a waiver of the term or of any subsequent breach of default.
12.6 Governing Law; Choice of Venue. The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the substantive laws of Colorado with respect to claims governed by state law and the laws of the United States with respect to claims arising under the laws of the United States, without regard to conflicts of laws principles and excluding the Convention on Contracts for the International Sale of Goods. Any action arising from or relating to this Agreement or the conduct of the parties pursuant hereto shall be commenced and heard solely within a federal or state court of competent jurisdiction found within the boundaries of Colorado, and STREAMSIDE and you each consent to personal jurisdiction and venue in any such court.
12.7 Severability. Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law.
12.8 Government Use. The Software is provided with restricted rights. With respect to any acquisition of the Software by or for any unit or agency of the U.S. Government ("Government"), the Software shall be classified as "Commercial Computer Software," as that term is defined in the applicable provisions of the Federal Acquisition Regulation ("FAR") and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement ("DFARS"). If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 252.227-7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227 7013(c), 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 Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III), as applicable.
12.9 Binding on Successors. This Agreement shall be binding upon you, your successors and assignees.