General Terms & Conditions
For use of StreamPC Services
NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF STREAMPC’S HOSTED PC’S AND OTHER SERVICES WHICH ARE LICENSABLE BY AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS AND CONDITIONS IN WRITING. YOUR USE OF STREAMPC SERVICES IS SUBJECT TO THESE TERMS AND CONDITIONS HEREIN AND THAT ORDER FORM EXECUTED BETWEEN YOUR ORGANIZATION AND STREAMPC.
TERMS & CONDITIONS FOR USE OF HOSTED PC’S AND DATA SERVICES
January 1, 2021
The terms and conditions listed below govern use of the Hosted: Computers, Virtual Desktops or PC’s, Data Security and Compliance, Applications, Business Continuity and Disaster Recovery services (collectively the “Hosted Services”) and accompanying materials (“Materials”) provided by StreamPC (“STREAMPC”). The terms “you” and “your” in uppercase or lowercase shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into a Subscription Agreement with STREAMPC. The “Subscription Agreement” shall consist of these General Terms and Conditions, and the standard, transactional rates applicable to you (the “Price Schedule”).
1. GRANT OF RIGHTS; RESTRICTIONS ON USE
You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use for your computing, application, data storage and compliance purposes the Hosted Services and Materials made available to you. The specific rights, services and resources not set forth herein are specified in the Price Schedule.
All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Hosted Services and Materials in any medium belongs to STREAMPC. Neither you nor your Authorized Users, any Partner facilitating support services for your Authorized Users acquire any proprietary interest in the Hosted Services, Materials, or copies thereof, except the limited rights granted herein.
Neither you nor your Authorized Users may use the Hosted Services or Materials in any fashion that infringes the intellectual property rights, privacy rights or proprietary interests of STREAMPC. Your use of the Hosted Services and Materials must comply with all applicable laws, rules and regulations.
Neither you nor your Authorized Users may remove or obscure the copyright notice or other notices contained in Materials.
2. ACCESS TO SERVICES
Only your employees, partners/members, and contractors dedicated to performing work exclusively for you (to the extent those categories of persons are appropriate to your situation) are eligible to access and use the Hosted Services and Materials (“Eligible Persons”). The term “Authorized User” means an Eligible Person whom you have identified to STREAMPC for purposes of issuing STREAMPC login credentials (“STREAMPC ID”) to access the Hosted Services and included them in the total number of
end users in your Pricing Schedule. You agree that StreamPC ID’s for your Authorized User may only be used by the Authorized User to whom STREAMPC assigned it and that those credentials may not be shared with or used by any other person, including other
Authorized Users. You will manage your roster of Authorized Users and will promptly notify STREAMPC to deactivate a STREAMPC ID if the Authorized User is no longer an Eligible Person or you otherwise wish to terminate the Authorized User’s access to the Hosted Services. You are responsible for all use of the Hosted Services accessed by your Authorized Users, including associated charges, whether by Authorized Users or others. You will use reasonable commercial efforts to prevent unauthorized use of STREAMPC login credentials assigned to your Authorized Users and will promptly notify STREAMPC, in writing, if you suspect that any STREAMPC ID is lost, stolen, compromised, or misused. You are neither identified on, nor shall you provide access to the Hosted Services to any
individuals or entities identified on, (a) OFAC’s list of Specially Designated Nationals (“SDN List”), (b) the UK’s HM Treasury’s Consolidated List of Sanctions Targets, (c) the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions,
(d) any other applicable sanctions lists, or (e) any person 50 percent or more owned, directly or indirectly, individually or in the aggregate by a person(s) identified in (a) through (d).
Use of the Hosted Services via mechanical, programmatic, robotic, scripted or any other automated means is strictly prohibited.
To comply with local privacy, data protection and other laws, your STREAMPC ID may be country specific and be subject to limitations precluding use outside the country for which it is issued, except for short periods not to exceed 30 continuous days. If applicable, and, STREAMPC suspects use of such a restricted STREAMPC ID outside the country of issue for a period in excess of 30 continuous days, STREAMPC may suspend the STREAMPC ID or require you to use and pay for an STREAMPC ID for the relevant country. On request, STREAMPC will issue a geographically compliant STREAMPC ID.
The Hosted Services, Materials, and feature functionality within the Hosted Services may be enhanced, added to, withdrawn, or otherwise changed by STREAMPC without notice.
Subject to Section 2.4 above, the Hosted Services may contain a feature that will allow your Authorized Users to create work Corporate Shares or corporate shares within your Hosted PC’s that are associated solely with their respective STREAMPC IDs. The Corporate Shares are designed to allow your Authorized Users to save copies of Materials made available by STREAMPC, as well as your proprietary, confidential data, the data
results and proceeds generated by the operation of your business. Applicable charges for the Data Storage, Security and Compliance services including and corporate data shares generally (collectively the “Corporate Shares”) are listed in the Price Schedule.
STREAMPC represents and warrants that: (a) the Corporate Shares will be under the exclusive control of your Authorized Users; and (b) STREAMPC will not access or otherwise review the content of Corporate Shares without your authorization. Notwithstanding the foregoing, STREAMPC may access or disclose the content of Corporate Shares to the extent necessary to facilitate features and functions of the Hosted Services and to comply with contractual and legal obligations including, but not limited to, an administrative or judicial proceeding. Authorized Users are solely responsible for the content of their respective Corporate Shares. You represent and warrant that the Authorized
Users have the right and authority to upload any and all content to the Corporate Shares that is not provided by STREAMPC. Authorized Users are prohibited from uploading content to the Corporate Shares that is defamatory, libelous, pornographic or obscene,
unless such content is reasonably related to professional responsibilities. In addition, Authorized Users are strictly prohibited from uploading content to the Corporate Shares that is unlawful. You agree to indemnify, defend, and hold STREAMPC harmless for any and all claims, damages, costs, fines and expenses that STREAMPC may incur as a result of you or your Authorized Users’ use of the Corporate Shares or any content uploaded to the Corporate Shares, excluding STREAMPC Materials. Authorized Users are solely
responsible for securing or saving the content of their respective Corporate Shares before the expiration or termination of this Subscription Agreement, if desired. STREAMPC has no obligation to provide the content of Corporate Shares to you or your Authorized Users after
the termination of this Subscription Agreement. All STREAMPC Materials contained in Corporate Shares remain subject to the storage limitations and other license terms and restrictions set forth in this Subscription Agreement.
3. LIMITED WARRANTY
STREAMPC represents and warrants that it has the right and authority to make the Hosted Services and Materials available to you and your Authorized Users as authorized expressly by this Subscription Agreement.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.1, THE HOSTED SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND STREAMPC AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions
from the Hosted Services or any Materials available or not included therein, (b) the unavailability or interruption of the Hosted Service or any features thereof or any Materials, (c) your or an Authorized User’s use of the Hosted Services or Materials, (d) the loss or
corruption of any data or equipment in connection with the Hosted Services, (e) the content, accuracy, or completeness of Materials, all regardless of whether you received assistance in the use of the Hosted Service from a Covered Party, (f) any delay or failure in performance
beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Hosted Services.
“Covered Party” means (a) STREAMPC and any officer, director, employee, subcontractor, agent, successor, or assign of STREAMPC; and (b) each third party supplier of Materials, third party alliance entities, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or third party alliance entity or any of their affiliates.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE HOSTED SERVICES OR MATERIALS OR THIS SUBSCRIPTION AGREEMENT EXCEED THE AMOUNT YOU PAID FOR THE HOSTED SERVICES
IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE HOSTED SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO STREAMPC OR ITS THIRD PARTY SUPPLIERS.
Notwithstanding anything to the contrary in this Section 4: (a) If there is a breach of the warranty in Section 3.1 above, then STREAMPC at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Hosted Services or Materials, asserted against you by such third party provided: (i) all use of the Hosted Services and
Materials was in accordance with this Subscription Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Hosted Services or Materials with or into other products or applications not approved by STREAMPC; (iii) you give STREAMPC prompt notice of any such claim; and (iv) you give STREAMPC the
right to control and direct the investigation, defense and settlement of each such claim. You, at STREAMPC’s expense, shall reasonably cooperate with STREAMPC in connection with the foregoing. (b) In addition to Section 4.5(a), if the Hosted Services or the operation thereof become, or in the opinion of STREAMPC are likely to become, the subject of a claim of infringement, STREAMPC may, at its option and expense, either: (i) procure for you the right to continue using the Hosted Services, (ii) replace or modify the Hosted Services so that they become non-infringing, or (iii) terminate this Subscription Agreement on notice to you and grant
you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed charges. (c) The provisions of Sections 4.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
These General Terms and Conditions, including the Additional Terms may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with the terms of your Price Schedule; all other provisions may be changed by STREAMPC immediately upon notice to you. If any changes are made to this Subscription Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Authorized Users but will apply to all similarly situated STREAMPC customers using the Hosted Services. You may terminate this Subscription Agreement upon written notice to STREAMPC if any change to these General Terms and Conditions is unacceptable to you. For termination to be effective under this Section 5.1, written notice of termination must be provided to STREAMPC within 90 days of the effective date of the change. Continued use of the Hosted Services following the
effective date of any change constitutes acceptance of the change but does not affect the foregoing termination right. Except as provided above, this Subscription Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized
representatives of both parties. Furthermore, this Subscription Agreement may not be supplemented, modified or otherwise revised by email exchange even if the email contains a printed name or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated.
You or STREAMPC may terminate this Subscription Agreement at any time in accordance with this Section 5.2. The effective date of termination shall be 10 days after the receipt of written notice of termination, unless a later date is specified in the notice. STREAMPC may temporarily suspend or discontinue providing access to the Hosted Services to any or all Authorized Users in breach of this Subscription Agreement without notice and STREAMPC may pursue any other legal remedies available to it.
All notices and other communications hereunder shall be in writing or displayed electronically in the Hosted Services by STREAMPC. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Hosted Services; or on the date received, if delivered in any other manner. Legal notices to STREAMPC should be sent to StreamPC, Inc. Attn: Chief Legal Officer, PO Box 982584, Park City, Utah 84098 and via email to email@example.com.
The failure of you, STREAMPC, or any third party supplier of Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
Neither you nor any Authorized User may assign your rights or delegate your duties under this Subscription Agreement without the prior written consent of STREAMPC, which consent shall not be unreasonably withheld. This Subscription Agreement and any amendment thereto shall be binding on and will inure to the benefit of the parties and their respective successors and permitted assigns.
If you, any of your Authorized Users, or any person you or your Authorized Users permits to use the Hosted Services or who gains access through an Authorized User’s failure to properly secure his or her STREAMPC ID (a “User”) should access or use any third party data in an unauthorized manner (a “Security Event) you will be solely liable for all claims that may arise from a Security Event caused by you, your Authorized Users or a
User and you will indemnify STREAMPC for any third party claims directed against STREAMPC that arise from the Security Event; and (e) all notifications and indemnity claims related to the Security Event will be solely at your expense.
This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of Utah regardless of the law that might otherwise apply under applicable principles of conflicts of law.
This Subscription Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Subscription Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this Subscription Agreement.
Where applicable, each affiliated company of STREAMPC and each third party supplier of Materials has the right to assert and enforce the provisions of this Subscription Agreement directly on its own behalf as a third party beneficiary.
This Subscription Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter.