Last Updated: November 29, 2016
The submission of information to Helios Exchange, access to, and use of the Helios Exchange website
(located at www.helios-eex.com), and the building energy analytics information services provided thereon
(collectively, the “Service”) is subject to the following contractually binding terms and conditions (the
“Terms and Conditions” or the “Agreement”). See also the Helios Exchange Privacy Policy.
If you are viewing, using, or accessing the Service for free or with a subscription, you are a “User.” These
Terms and Conditions refer to Users collectively as “You.” No employee, independent contractor, agent, or
affiliate of any competing building energy analytics services is permitted to be a User or to view, use, or
access the Helios Exchange website without express written permission from Helios Exchange. By
viewing, using, or accessing the Service, You represent and warrant that You are not a competitor of Helios
Exchange, Inc. or any of its affiliates (collectively, “Helios Exchange” or the “Company”) or acting on
behalf of a competitor of Helios Exchange in registering for or accessing the Service.
By viewing, using or accessing the Service, You agree that these Terms and Conditions are a binding legal
agreement between You and Helios Exchange. You also agree to be contractually bound by the Helios
Exchange Privacy Policy. If You do not agree to these Terms and Conditions, You are prohibited from
viewing, using or accessing the Service and must immediately discontinue viewing, use, and/or access.
Notwithstanding anything to the contrary herein, if You and Helios Exchange have entered into a separate
written agreement that covers Your use of a Helios Exchange product or service, the terms and conditions
of such agreement shall control with respect to such product or service to the extent they are inconsistent
with these Terms and Conditions. All questions concerning these Terms and Conditions should be directed
to Helios Exchange, Inc., 1 Gate Six Road, Suite 203, Sausalito, CA 94965. Helios Exchange may update
these Terms and Conditions at any time, with or without notice to You. The latest version of the Terms and
Conditions is available on the Helios Exchange website.
User privileges are granted by Helios Exchange to individuals exclusively and are granted specifically to
the subscribing registered User only. User rights cannot be assigned, sublicensed, distributed, shared,
viewed, accessed, or otherwise transferred to anyone other than the registered User without the express
written permission of Helios Exchange. By completing the registration process You become a “User” and
You represent and warrant that the information You provide is true, accurate, complete, and current. Each
User must maintain a valid email address and a password, which shall be utilized for logging on to the
Helios Exchange system. Users are not permitted to share their individual login information with others.
Helios Exchange has the right to refuse or terminate service to any User, individual, organization, or firm
(and all persons associated or affiliated with said organization or firm) that fails to abide by the Terms and
Conditions, or abuses its rights related to the Service. Upon registration, which is free, Users may search
using the Service, and will receive a subset of results and analysis that can be performed on the Helios
Exchange Website. In order to use all the available functionality and analysis for a given property, Users
must upgrade to a paid subscription.
Helios Exchange utilizes email as a vital and primary communication channel with Users, who hereby
acknowledge and grant Helios Exchange the permission to communicate with them via email (as well as
other communication channels such as phone and fax) for any purposes Helios Exchange determines to be
relevant including, but not limited to, system messages, product updates, service announcements, and other
marketing messages. Helios Exchange will use best efforts to honor User’s request to opt out of marketing
messages, but under no circumstances will Helios Exchange have any liability for sending any email to its
Users. By becoming a User, you acknowledge and agree that Helios Exchange, Inc., and its corporate
affiliates, may record telephone and other electronic communications it has with you for their internal
business purposes, including but not limited to training and quality assurance purposes.
You agree to treat all information obtained from the Service, including Helios Exchange Materials and any
information otherwise made available to You in the Service (individually and collectively, the “Content”)
as proprietary to Helios Exchange. You agree that Content reserved for Users will be maintained as
confidential and shall be protected as a trade secret of Helios Exchange. Helios Exchange does not ensure
the accuracy of, endorse or recommend any Content and You use such Content at Your own risk. You may
view, access, or otherwise use the Content solely to obtain initial information from which further evaluation
and investigation may commence.
Helios Exchange reports and other similar information, reports and services (individually and collectively
“Helios Exchange Reports”), the Service, and any and all Content offered by Helios Exchange to You ARE
PROVIDED SOLELY FOR GENERAL INFORMATION, AND DO NOT CONSTITUTE
ENGINEERING, REAL ESTATE, LEGAL, TAX, ACCOUNTING, OR OTHER PROFESSIONAL
ADVICE. BEFORE ACTING ON ANY INFORMATION PROVIDED BY HELIOS EXCHANGE, YOU
SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
You shall limit access to, viewing of, and use of building energy analytics, building data and other analysis
to personal and internal use, and shall not use any information obtained from the Service for further
distribution, publication, public display, or preparation of derivative works or facilitate any of these
activities in any way. You shall not use or reproduce any Content that is obtained from the Service, or that
is otherwise made available to You in the Service, for or in connection with any other building energy
analytics service or device. You shall not use the Helios Exchange Service as part of any effort to compete
with Helios Exchange, including without limitation using the Helios Exchange Service to provide, alone or
in combination with any other product or service, any database services to any third party or any use that
causes a reduction or loss from an existing or potential Helios Exchange User, nor shall You remove, erase,
or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or
recorded in the Helios Exchange Service. Except for the automated loading of data from Energy Star
Portfolio Manager, You shall not use any robot, spider or other automated process to submit data, monitor,
data mine or copy Helios Exchange products, services or information; decompile, decode or reverse
engineer Helios Exchange software; or use Helios Exchange products or services in an unlawful manner,
such as for offensive, abusive, tortious, libelous, defamatory or other illegal purposes.
Helios staff members reserve the right of full access to user accounts to allow them to work with users
to analyze their properties and to ready projects for financing. However, Helios staff members may not
disclose any proprietary user information to third parties without the consent of the user.
Users are required to maintain the confidentiality of all logins and passwords. You are responsible for the
activities that occur under your account, login or password. Helios Exchange is not responsible for any loss
or damage arising from your failure to maintain the confidentiality of your account, login information or
password and/or failure to comply with the terms and conditions set forth in the sections of these binding
Terms and Conditions that relate to confidentiality of account, login or password information.
Helios Exchange reserves the right to terminate or suspend a User’s account upon a good faith
determination of a violation of these binding Terms and Conditions or any material provision of another
agreement between the parties or their affiliates. Cause for termination includes, but is not limited to,
breaches or violations of the Terms and Conditions, requests by law enforcement, fraudulent or illegal
activity by you, discontinuance or material modification of Helios Exchange services, nonpayment of fees
owed by you in connection with Helios Exchange or its affiliates’ services, account inactivity or technical
or security issues. Upon termination, Helios Exchange shall have no obligation to maintain or forward any
content in your account.
Helios Exchange retains all rights (including Intellectual Property Rights as defined below), title and
interest in the Service, the Helios Exchange Website, Helios Exchange Materials, Helios Exchange
technology, and all underlying technology and data including any enhancements and improvements thereto
as a result of providing the products, services, information or other deliverables (collectively “Deliverables)
hereunder. You will not and will not allow others to: reverse engineer, decompile, disassemble, merge,
copy, use, disclose, sell or transfer the underlying source code or structure or sequence of Helios
Exchange’s technology or delete or alter author attributes or copyright notices. You shall use the Helios
Exchange system solely for Your own individual use and shall not share passwords with others or allow
others to use the Helios Exchange system under or through that Your login ID/email and password; nor
shall any User use the Helios Exchange system to conduct searches on behalf of other non-User research,
analyst, sales or other similar personnel.
Intellectual Property Rights means all intellectual property rights (throughout the universe, in all media,
now existing or created in the future, for all versions and elements, in all languages, and for the entire
duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not
perfected, including without limitation, (a) all rights associated with works of authorship including without
limitation copyrights, moral rights, copyright applications, copyright registrations, synchronization rights;
(b) rights associated with trademarks, service marks, trade names, logos, trade dress, and the applications
for registration and registrations of trademarks and service marks; (c) rights relating to the protection of
trade secrets and confidential information; (d) rights analogous to those set forth in this definition and any
and all other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals,
reissues, and extensions of the foregoing (as and to the extent applicable) now existing, later filed, issued,
or acquired.
IN NO EVENT SHALL HELIOS EXCHANGE BE LIABLE FOR ANY INDIRECT, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS,
INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR BUSINESS REPUTATION, OTHER
INTANGIBLE LOSS, INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION,
PRODUCTS OR SERVICES PROVIDED, RELIANCE BY THE YOU ON THE COMPLETENESS OR
ACCURACY OF INFORMATION, PRODUCTS OR SERVICES, LOSS OF USE OF DATA, LOSS OF
DATA, COMPUTER VIRUSES, COMPUTER CORRUPTION, DELETION OR CORRUPTION OF
CONTENT OR DATA MAINTAINED OR TRANSMITTED THROUGH THE USE OF HELIOS
EXCHANGE ‘S SERVICES OR USER’S FAILURE TO KEEP LOGIN AND/OR PASSWORD SECURE
AND CONFIDENTIAL ARISING OUT OF THESE BINDING TERMS AND CONDITIONS. Your
exclusive remedy, and Helios Exchange’s entire liability under these Terms and Conditions shall be a
refund of the fees paid to Helios Exchange hereunder, and in no event will Helios Exchange’s liability for
any reason exceed such fee. Helios Exchange (and its officers, directors, employees and agents) shall not be
liable for any damages whatsoever arising from User’s use of the Deliverables, and User shall indemnify
Helios Exchange (and Helios Exchange ‘s officers, directors, employees and agents), and hold each of them
harmless from and against any and all costs, damages or losses by any of them (including, without
limitation, reasonable attorneys’ fees) as a result of a claim by any person other than User arising from
User’s use or application of the Deliverables. Some jurisdictions do not allow the exclusion of liability for
certain damages. As a result, some of the exclusions above may not apply to you.
THE BUILDING ENERGY ANALYTICS, BUILDING DATA, AND OTHER ANALYSIS ARE
PROVIDED “AS IS”WITHOUT WARRANTY OF ANY KIND. HELIOS EXCHANGE
MAKES NO PROMISES, REPRESENTATION OR WARRANTIES,EITHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE BUILDING ENERGY ANALYTICS,
BUILDING DATA,AND OTHER ANALYSIS, INCLUDING THEIR ACCURACY, OPERATION,
CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION,OR THE EXISTENCE OF ANY
LATENT OR PATENT DEFECTS, AND HELIOS EXCHANGE SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, WORKMANLIKE
EFFORT, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE,WARRANTIES RELATING
TO ENCUMBERANCES OR LIENS, AND, UNDER THE LAW OF THE UNITED STATES, THE IMPLIED
CONDITIONS OF SATISFACTORY QUALITY AND ACCEPTANCE AS WELL AS ANY LOCAL
JURISDICTIONAL ANALOGUES TO THE ABOVE AND OTHER IMPLIED OR STATUTORY WARRANTIES.
HELIOS EXCHANGE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES THAT ACCESS
TO HELIOS EXCHANGE ‘S SERVICES WILL BE UNINTERRUPTED OR SECURE.
ANY MATERIAL DOWNLOADED FROM HELIOS EXCHANGE ‘SWEBSITE, INCLUDING
BUILDING ENERGY ANALYTICS, BUILDING DATA AND OTHER ANALYSIS IS ACCESSED
AT YOUR OWN DISCRETION AND RISK, AND YOU WAIVE ALL CLAIMS AND CAUSES OF
ACTION RELATING TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS,
DOWNLOAD OR DISPLAY DEVICE OR LOSS OR CORRUPTION OF DATA THAT RESULTS
FROM SUCH DOWNLOADS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED FROM HELIOS EXCHANGE OR ITS SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY STATED IN THE TERMS AND CONDITIONS. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. AS A RESULT, SOME OF THE EXCLUSIONS
ABOVE MAY NOT APPLY TO YOU.
The maps and images provided by Helios Exchange have been obtained from sources believed reliable,
including Google Maps. By using Google Maps, You agree to be bound by the Google Maps Terms of
Service, available at https://www.google.com/intl/en-US_US/help/terms_maps.html.
Helios Exchange has not verified the information and makes no guarantees, warranties or representations
about the maps and/or images. In cases where an image of a specific building has not been found, proxy
images have been used (for example, a “typical” apartment building would be shown when an image of a
specific apartment building was not found). These cases are indicated by scrolling over the information
icon (lower case “i”) on the image. Users can upload their own images to replace those on the platform.
It is your responsibility to independently confirm the accuracy and completeness of any map and/or image.
You assume all risk of use. Neither Helios Exchange nor its partners or suppliers assume any responsibility
for loss, damage or delay caused by Your use of and/or reliance on Your use of Helios Exchange’s
information, products or services.
These binding Terms and Conditions, and the Deliverables provided by Helios Exchange, shall be
governed by the laws of California, without reference to conflict of laws principles. You hereby consent to
the exclusive jurisdiction and venue of the State and Federal courts California for the adjudication of any
disputes or claims arising out of and/or related to these binding Terms and Conditions. If any provision of
these binding Terms and Conditions is found to be invalid or unenforceable by a court of competent
jurisdiction, such provision shall be severed from the remainder of these Terms and Conditions, which shall
remain in full force and effect.You acknowledge that any breach of these binding Terms and Conditions,
including without limitation the restrictions on competitor use, viewing, or access and the section above
titled “Use of Information,” or any unauthorized use of the Service, is a material breach
of the Agreement and will cause irreparable harm and injury to the Company, for which there is no
adequate remedy at law. Thus, in addition to all other remedies available at law or in equity,
You agree that the Company shall be entitled to injunctive relief. Any User, or other individual or entity
that violates any term of these binding Terms and Conditions is precluded from enforcing, agrees not to enforce,
and covenants not to sue to enforce, any similar contract, including terms and conditions, terms of use and terms
of service, asserted by such User or other individual or entity, or any affiliate thereof, as binding upon Helios
Exchange and its affiliates. Material breach of these binding Terms and Conditions harms the integrity,
functionality, and reputation of Helios Exchange and its affiliates; detracts from Users’ trust in
and use of the Service; and unfairly harms, thereby causing damage to, the business of Helios Exchange.
You agree that, in the event You materially breach these binding Terms and Conditions,
You will pay Helios Exchange’s reasonable attorneys’ fees and costs, to be determined by a court or
arbitrator, but not less than $30,000, an amount the parties agree would be the
minimum reasonable fee for any legal action required to enforce these binding Terms and Conditions.
Should Helios Exchange file or threaten to file a judicial action against User alleging violation of Helios
Exchange ‘s intellectual property rights, User may elect to resolve Helios Exchange’s claims through
binding arbitration to be governed by the Commercial Arbitration Rules of the American Arbitration
Association and to be held in California pursuant to the laws of California. Such right must be invoked
within twenty (20) days of Helios Exchange’s filing of or threat to file a judicial action. Provided, however,
that nothing in this paragraph shall be construed to prohibit or prevent Helios Exchange from requesting
any legal or equitable relief or remedy of any kind in an action commenced in state or federal court or in
any arbitration proceeding.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns. The rights under this Agreement or any license granted hereunder may
not be assigned, sublicensed or otherwise transferred by User without the prior written consent of Helios
Exchange, which retains the right to withhold consent in its sole discretion.
The failure of Helios Exchange to exercise or enforce a legal right or remedy contained in the Terms and
Conditions does not constitute a waiver of any such right or remedy. No waiver of any right, term or
provision of the Terms and Conditions is deemed a waiver of any other right, term or provision. If a court
of competent jurisdiction finds any provision of the Terms and Conditions to be invalid, You agree that the
remaining terms and provisions remain in full force and effect.
All notices to Company must be in writing and must be sent registered mail, certified mail, or overnight
mail with a return receipt requested to Helios Exchange, Inc., 1 Gate Six Road, Suite 203, Sausalito, CA
94965.
Except as provided herein, the terms and conditions of this Agreement constitute the entire agreement
between the parties and supersede all previous agreements and understanding, whether oral or written,
between the parties hereto with respect to the subject matter of this Agreement.