Streamgineer Customer Agreement
Effective starting: February 25th, 2016
By clicking on the “Accept Terms and Conditions” (or similar button) that is presented to you at the time of your Log In, or by using or accessing Streamgineer products, you indicate your agreement to be bound by our Streamgineer Customer Agreement.
This Streamgineer Customer Agreement (the “Agreement”) is between you and Streamgineer Pty Ltd (ABN 87 167 964 267) (“Streamgineer”). If you are entering into this agreement on behalf of your company and not as an individual, then “Customer” or “you” means your company and you are binding your company to the same terms in this agreement.
Streamgineer may change this Agreement, you can refer to Section 22 (Changes to this Agreement) below for more details.
2 Types of Streamgineer Products. This Agreement governs (a) Streamgineer’s cloud-based solutions and/or software (“Cloud Sevices”), and (b) any related support or maintenance services provided by Streamgineer. Any services provided, as well as any documentation are referred to as “Products”.
3 Account Registration. When you place a purchase with Streamgineer, you will be registered in order to receive any Products. Any registration information that you provide to us must be accurate, current and complete. All notices and statements will be sent to you by email or through your account, so you must ensure your information is up to date. You are responsible for all actions taken through your accounts.
4.1 Directly with Streamgineer. Streamgineer’s Product ordering documentation or quote (“Order”) will specify your authorized scope of use for the Products, which include: (a) number and type of Authorized Users (as defined below), or (b) other restrictions or billable units depending on the Products provided (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
5 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users, if you designate any of your customers as Authorized Users, you will be responsible for their use of the Software or Cloud Services as you would be for any other Authorized User. Accordingly, you must enter into valid, binding agreements with your customers that require them to comply with the applicable terms of the Agreement, including any conditions or restrictions with respect to use of, or access to, the Software or Cloud Services. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order by contacting the sales team in Streamgineer (email@example.com). In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
6 Cloud Services Terms.
6.1 Access to Cloud Services. Subject to the terms and conditions of this Agreement, Streamgineer grants you a non-exclusive right to access and use the Cloud Services during the applicable Subscription Term (as defined below) in accordance with this Document. Normally the Cloud Services are accessed through a web-browser. If Streamgineer offers client software (e.g., a desktop or mobile application) for any Cloud Service, you may use such software solely with the Cloud Service, subject to the terms and conditions of this Agreement. You acknowledge that our Cloud Services are on-line, subscription-based products and that we may make changes to the Cloud Services from time to time. The Cloud Services requires a user log-in in order to operate, which will be delivered as described in Section 9.2 (Delivery).
6.2 Subscription conditions. Cloud Services are provided on a subscription basis for a set term stated in your Order (“Subscription Term”). All Subscriptions will automatically renew for periods equal to your initial Subscription Term (and your new payment will be updated to the current rates) except as otherwise specified in your Order, or if you terminate your subscription by contacting our sales team at sales@Streamgineer.com. If you terminate your subscription, your account will deactivate at the end of your billing term. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
6.3 Authorizations. You must ensure that all user IDs and passwords for the Cloud Services are kept strictly confidential and that Authorized Users do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You carry the responsibility for any and all activities made using your accounts and passwords, and you agree to inform Streamgineer of any unapproved use of which you become aware straightaway.
6.4 Your information. “Content” means any data, drawings, CAD, images or other materials of any type that you upload, submit or otherwise transmit to or through Cloud Services. You retain all of your ownership rights in your Content, but you are required to grant limited licence rights to Streamgineer. Subject to the terms of this Agreement, you hereby grant to Streamgineer a non-exclusive, worldwide, royalty-free right to collect, to use, reproduce, distribute, prepare derivative works of, display, and perform that Content, exclusively to the extent necessary to provide the relevant Cloud Service to you and to facilitate you the ability to share your Content or interact with other people, to distribute and display your Content as you direct.
6.5 Security. Streamgineer is equipped with security procedures to better protect your Content from any security risks. Our security process is constantly reviewed to ensure it is current to the latest best practices. Nevertheless, we appreciate your understanding that use of the Cloud Services essentially requires the use of networks that are not owned, operated or controlled by us, and we are not accountable if any of your Content it’s lost, modified, seized or kept across such networks. We will do everything in our power provide the best security, but we cannot guarantee that our security procedures will be error-free, that transmissions of your Content will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.6 Your Content in our Services.
6.6.1 General. You must guarantee that your use of our Cloud Services is at all times compliant with Section 7 (Acceptable Use Terms) and all applicable local, state, federal and international laws and regulations. You represent and warrant that you have (and will continue to have during your use of the Service) all necessary licenses, rights, consents, and permissions which are required to enable Streamgineer to use your Content for the purposes of the provision of the Service, and to guarantee that your Content and its transfer to and use by Streamgineer as authorized by you under this Agreement do not violate any Laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.5 (Security), Streamgineer assumes no responsibility or liability for your Content, and you shall be solely responsible for your Content and the consequences of using, disclosing, storing, or transmitting it.
6.6.2 Sensitive Data. You will not submit or upload to the Cloud Services any Content which contains material which it is unlawful for you to possess in the country in which you are resident. Accounts are penalized for these violations, and serious or repeated violations can lead to account termination. Notwithstanding any other provision to the contrary, Streamgineer has no liability under this Terms for Sensitive Data.
6.6.3 Content Indemnity. In any case that Streamgineer should be held liable from or relating to any claim involving your Content, or your use of the Cloud Services in breach of this Agreement, you will indemnify and hold innocent Streamgineer from and against any loss, liability, damage, or monetary charges, including attorneys’ costs.
6.7 Deletions of Content. Streamgineer it’s not obliged to screen any content uploaded or submitted to the Cloud Services. Nonetheless, if we believe such act necessary based on your infringement of this Agreement or Section 7 (Acceptable Use Terms), we may (1) delete your Content from the Cloud Services and (2) end your access to the Cloud Services. You will be notify in the case we take such action and give you the opportunity to remedy your violation, but if we determine that your actions endanger the operation of the Cloud Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Cloud Service during any suspension period. We have no liability to you for removing or deleting your Content from or suspending your access to any Cloud Services as described in this section.
6.8 Ending your Subscription with Streamgineer. Upon ending your subscription service with Streamgineer, we erase and/or delete your Content within a sensible period of time after ending your Subscription Term. If you wish your Content is returned to you, you must contact Streamgineer Sales (firstname.lastname@example.org) before the expiration of your subscription. Please allow up to 20 business days to process your request.
7 Acceptable Use Terms. You must comply with all conditions set in this Section 7 (Acceptable Use Terms). Streamgineer does not allow the following:
- Compromising the integrity of our systems. This could include probing, scanning, or testing the vulnerability of any system or network that hosts our services.
- Tampering with, reverse-engineering, or hacking our services, circumventing any security or authentication measures, or attempting to gain unauthorized access to the services, related systems, networks, or data.
- Modifying, disabling, or compromising the integrity or performance of the services or related systems, network or data.
- Deciphering any transmissions to or from the servers running the services.
- Overwhelming or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.), such as:
- Using “robots,” “spiders,” “offline readers,” or other automated systems to sends more request messages to our servers than a human could reasonably send in the same period of time by using a normal browser.
- Going far beyond the use parameters for any given service as described in its corresponding documentation.
- Consuming an unreasonable amount of storage in a way that’s unrelated to the purposes for which the services were designed.
- Misrepresentation of yourself, or disguising the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Streamgineer or any third party).
- Using the services to violate the privacy of others, including publishing or posting other people’s private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from our services.
- Using our services to stalk, harass, or post direct, specific threats of violence against others.
- Using the Services for any illegal purpose, or in violation of any laws (including without limitation data, privacy, and export control laws).
- Accessing or searching any part of the services by any means other than our publicly supported interfaces (for example, “scraping”).
- Using meta tags or any other “hidden text” including Streamgineer’s or our suppliers’ product names or trademarks.
- Using the services to generate or send unsolicited communications, advertising, chain letters, or spam.
- Disparaging Streamgineer or our partners, vendors, or affiliates.
- Posting, uploading, sharing, submitting, or otherwise providing content that:
- Infringes Streamgineer’s or a third party’s intellectual property or other rights, including any copyright, trademark, patent, trade secret, moral rights, privacy rights of publicity, or any other intellectual property right or proprietary or contractual right.
- You don’t have the right to submit.
- Is deceptive, fraudulent, illegal, obscene, defamatory, libellous, threatening, harmful to minors, pornographic (including child pornography, which we will remove and report to law enforcement), indecent, harassing, hateful.
- Encourages illegal or tortious conduct or that is otherwise inappropriate.
- Attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition.
- Contains viruses, bots, worms, scripting exploits, or other similar materials.
- Is intended to be inflammatory.
- Could otherwise cause damage to Streamgineer or any third party.
In this Section 7 (Acceptable Use Terms), the term “content” means: (1) any information, data, text, software, drawings, CAD data, scripts, music, sound, photos, graphics, videos, messages, tags, interactive features, or other materials that you post, upload, share, submit, or otherwise provide in any manner to the services and (2) any other materials, content, or data you provide to Streamgineer or use with the Services.
Without affecting any other remedies available to us, Streamgineer may permanently or temporarily terminate or suspend a user’s account or access to the services without notice or liability if Streamgineer (in its sole discretion) determines that a user has violated this Section 7 (Acceptable Use Terms).
8 Support and Maintenance. Streamgineer will provide the support and maintenance services for the Products during the period for which you have paid the applicable fee. Support and Maintenance is provided via email support (email@example.com) from 08:30am to 5:00pm (AEST, Monday to Friday, except during Australian public holidays). The Streamgineer Support Policy may be modified by Streamgineer from time to time to reflect process enhancements or changing practices. Support and Maintenance for Software includes major or minor releases, bug fixes, or any other changes, improvements, or modifications to the Cloud Services that we make generally commercially available.
9 Returns and Financial Terms.
9.1 Return Policy. As part of our commitment to customer satisfaction, it is our customary business practice to allow customers to return a Product within 30 days of payment for any reason or no reason and to receive a refund of the amount paid for the returned Product. A return means that we will disable access to the Cloud Service. We will not accept returns after the 30-day return period. You understand that Streamgineer may change this practice in the future in accordance with Section 22 (Changes to this Agreement).
9.2 Delivery. We will deliver the login instructions to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic.
9.3 Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in Australian dollars at the time you place your Order. Other than as expressly set forth in Section 9.1 (Return Policy), all amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term or Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
9.4 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Streamgineer, you must pay to Streamgineer the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Streamgineer any such exemption information, and Streamgineer will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
10 No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Streamgineer’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
11 Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
12 License Certifications and Audits. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Streamgineer at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
13 Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Streamgineer and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Streamgineer, including without limitation as they may incorporate Feedback (“Streamgineer Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Streamgineer, including in the course of receiving Support and Maintenance (“Feedback”). Streamgineer may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Streamgineer’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
14 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure. Any Streamgineer Technology and any performance information relating to the Products shall be deemed Confidential Information of Streamgineer without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
15 Term and Termination. This Agreement is in effect for as long as you have a valid Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Streamgineer, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Cloud Services subscriptions, set-up fees, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Streamgineer Confidential Information. The following provisions will survive any termination or expiration of this Agreement: Sections 6.6.3 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products), 11 (Restrictions), 12 (License Certifications and Audits), 13 (Ownership and Feedback), 14 (Confidentiality), 15 (Term and Termination), 16.2 (Warranty Disclaimer), 17 (Limitation of Liability), 20 (Dispute Resolution), 21 (Export Restrictions), and 23 (General Provisions).
16 Warranty and Disclaimer.
16.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
16.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND STREAMGINEER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. STREAMGINEER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF STREAMGINEER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER STREAMGINEER NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A CLAUD SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
17 Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE AUD$20. THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
18 Publicity Rights. We may identify you as a Streamgineer customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@Streamgineer.com at any time. Please note that it may take us up to 30 days to process your request.
20 Dispute Resolution
20.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of Victorian Law. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Melbourne, Australia. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence according to the laws of Victoria, Australia. The language of the arbitration shall be English.
20.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 20.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Victoria, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Victoria, Australia , generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Streamgineer may bring a claim for equitable relief in any court with proper jurisdiction.
20.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 20.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
20.4 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
21 Export Restrictions. The Products are subject to export restrictions by the Australian government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from Australia or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the Australian Government’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the Australian government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any Australian or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the Australian government.
22 Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, through your Streamgineer account, or in the Product itself). If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of the Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
23 General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Streamgineer Pty Ltd, c/o Streamgineer, Level 9, 440 Collins St, Melbourne, Victoria, Australia Attn: Official Notice. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. This Agreement is the entire agreement between you and Streamgineer relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.