TERMS OF SERVICE
For Vidyo® Hosted Services
READ CAREFULLY: YOUR SUBSCRIPTION FOR AND USE OF THE SERVICE IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE. BY CLICKING THE “I AGREE” BUTTON OR SIMILAR BUTTONS OR LINKS THAT INDICATE THAT YOU ARE AGREEING TO THESE TERMS OF SERVICE, BY SUBMITTING A PURCHASE ORDER FOR OR OTHERWISE CONTRACTING FOR THE SERVICE (INCLUDING THROUGH THE EXECUTION OF A BINDING ORDER FORM WITH VIDYO OR ANY VIDYO RESELLER, OR BY OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. YOU ARE ENCOURAGED TO PRINT OR DOWNLOAD A COPY OF THESE TERMS OF SERVICE AND KEEP THEM IN YOUR RECORDS.
THESE TERMS OF SERVICE (“TERMS OF SERVICE”) GOVERN THE INDIVIDUAL OR ENTITY (AS APPLICABLE, “YOU” OR “YOUR”) THAT HAS SUBSCRIBED TO THE USE OF A HOSTED OR CLOUD VIDEO CONFERENCING AND MESSAGING SERVICE (THE “SERVICE” AS FURTHER DESCRIBED BELOW) OFFERED BY VIDYO, INC. (AS APPLICABLE, “VIDYO”, “WE”, “OUR” OR “US”), AND ALL USERS THEREOF THAT ARE PROVIDED ACCESS TO THE SERVICE BY YOU, INCLUDING THROUGH YOUR (INCLUDING ANY USERS AUTHORIZED BY YOU) INVITATION TO SUCH USERS TO USE THE SERVICE AS A GUEST (ALL SUCH USERS, “USERS”). THE INSTRUMENT THROUGH WHICH SUCH SUBSCRIPTION WAS AGREED IS REFERRED TO HEREIN AS THE “ORDER FORM.” THESE TERMS OF SERVICE HEREBY INCORPORATE BY REFERENCE THE USER TERMS AND CONDITIONS APPLICABLE TO THE SERVICE (THE “END USER TERMS”), WHICH ARE LOCATED AT http://www.vidyo.com/hosted-user-terms-and-conditions/, AND WHICH SHALL ALSO BE BINDING ON YOU UNDER THESE TERMS OF SERVICE.
YOU UNCONDITIONALLY AGREE (A) THAT THESE TERMS OF SERVICE ARE AN AGREEMENT THAT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU, AND (B) TO BE BOUND BY AND TO BECOME A PARTY TO THIS AGREEMENT WITH VIDYO. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS SET FORTH IN THESE TERMS OF SERVICE, THE USE OF THE SERVICE IS STRICTLY PROHIBITED. TO THE EXTENT THAT THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, YOUR ACCEPTANCE THEREOF IS EXPRESSLY LIMITED TO THESE TERMS.
1. ACCESS AND USE OF THE SERVICE
The Service: The Service allows two or more Users to communicate by videoconference, audioconference, text message, content sharing or otherwise from multiple devices using our proprietary software (each such communication, a “Call”). You are expressly responsible for all Users’ use of the Service and their compliance with these Terms of Service, and with the terms of the End User Terms to which we may require any User to assent prior to their use of the Service, and expressly agree that you are liable for any non-compliance by any Users. To the extent that these Terms of Service require any action or inaction on the part of any User, (i) to the extent that you have the authority to direct the actions of such User (e.g., such User is your employee or agent), you agree to cause such action or inaction by such User, and (ii) to the extent that you do not have such authority, you agree to use commercially reasonable efforts to cause such action or inaction by such User. You will not make the Service available to anyone who is not at least 18 years of age.
Purchase through Reseller: These Terms of Service will apply whether you subscribed for the Service directly from Vidyo or through an entity other than Vidyo (a “Reseller”).
Fees; Scope of Use: Your use of the Services is in all cases subject to the payment of the fees set forth on the Order Form, and is limited to the term and to the limitations in volume (e.g., concurrent connections, number of Users, etc.) set forth on the Order Form. If your use of the Service exceeds the limits set forth on the Order Form or otherwise requires the payment of additional fees (per the Order Form), you will be billed for such usage in the following Vidyo or Reseller billing cycle and you agree to pay such additional fees within 30 days of your receipt of the applicable invoice. Vidyo reserves the right to change any fees or applicable charges and to institute new charges and fees at the end of the Initial Term or any Renewal Term (as defined below), upon 30 days prior notice (which may be sent by email). All fees paid to Vidyo for subscriptions to the Service are non-refundable. No refunds or credits will be granted for partial periods of Service or unused terms or in the event of a price reduction or promotional offering. Your continued use of the Service after any price change made in accordance with these Terms of Service becomes effective is hereby deemed to constitute your agreement to pay the changed amount. You agree that Vidyo may take any steps it deems necessary to collect the fees from you and that you will be responsible for all costs and expenses incurred by Vidyo in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Vidyo may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. All fees are exclusive of any sales, use, service, value-added, withholding tax or other tax levied or incurred by any government authority on account of the Service (“Taxes”). You will be responsible for all Taxes associated with the Service other than taxes based on Vidyo’s net income. If Vidyo is legally obligated to pay or collect Taxes for which you are responsible, Vidyo may invoice and you will promptly pay such amounts (or you will reimburse Vidyo for any Taxes paid on your behalf) which Vidyo will then remit to the appropriate authorities on your behalf. If either party is audited by a taxing or other governmental authority in connection with the Service, the other party shall reasonably cooperate with the party being audited in an appropriate and timely manner.
Registration and Set-Up: In order to use the Service, you will have to register and create an administrative account (“Administrator Account”). As part of that process, you will identify an administrative user name and password for the Administrator Account. Administrators must ensure their contact information is accurate and updated at all times. You may use the administrative user name and password to create such number of standard User accounts (each with a user password) (each, a “User Account”) to which you are entitled pursuant to the Order Form. Vidyo reserves the right to refuse registration of, or cancel or require change of, passwords it deems inappropriate in its reasonable discretion. The use of any application program interface exposed or made available by Vidyo (“API”) is also subject to the terms of the Vidyo Developer License Agreement which can be viewed at .http://www.vidyo.com/api-developer-license-agreement/. If you use any such API you agree that you have read and will comply with the terms of the DLA.
Infrastructure Products: Your use of and subscription to the Service may require or include the license and use or installation of certain software, video-enabled devices, video communication services, modems, servers, operating systems, networking devices and web servers, plug-ins, extensions, documentation or data we provide (such items, “Infrastructure Products”). Operation, installation and use of Infrastructure Products are governed by the terms and conditions of the separate End User License Agreement, to which you must agree prior to any installation or use thereof. You are responsible for the selection and maintenance of any hardware device which is to be used in connection with the Infrastructure Products (“Hardware Devices”), including, without limitation, other video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking devices and web servers, and for the connection of all such Infrastructure Products and Hardware Devices to the Internet (including bandwidth and the availability of all such connections). You expressly agree that we have no responsibility or liability to anyone with respect to such matters, or with respect to any difficulty or inconvenience that you or any User experiences attempting to utilize any item of hardware or attempting to connect any item of hardware to the Internet, except with respect to warranty or support obligations we may separately have with respect to hardware purchased or licensed from us under the explicit terms relating thereto. You may only use such number of copies of Infrastructure Products as are covered by the licenses provided to you and may not make any additional copies. You may only utilize the Infrastructure Products in connection with the Services. Vidyo, in its sole discretion, reserves the right to add/change/remove additional features or functions, or to provide programming fixes, updates and upgrades, to the Infrastructure Products. You acknowledge and agree that Vidyo has no obligation to make available to you any specific or subsequent versions of the Infrastructure Products. Your license to the Infrastructure Products shall terminate upon expiration of the Term of the Service and upon such termination, you will immediately cease to use and will delete all copies of any Infrastructure Products which are software and return any Infrastructure Products which are hardware.
Administrator Responsibility: You are responsible for all activities conducted through your Administrator Account. If you permit someone else to use your Administrator Account, you must ensure that they comply with these Terms of Service, and you agree to be liable for all liabilities arising from such use. You agree to notify Vidyo immediately of any unauthorized use of your password or your Administrator Account, or of any other breach of security.
Support: Vidyo will provide you support services in accordance with the terms of its then current support policy for the applicable Service or any support plan you subscribe for.
Conditions to Use of Service: You will have no right to use the Service, or to permit any of your Users to use the Service, unless you accept and comply with these Terms of Service and Vidyo receives all fees due in connection therewith. You are solely responsible for ensuring that each of your Users receives a copy of or has access to the User Terms and Conditions and you will be responsible for any non-compliance by such Users. You and your Users may only utilize the Service to the extent and subject to the limits set forth in the Order Form and will not seek to circumvent such limitations by sharing credentials or otherwise.
Beta Services: You understand and acknowledge that some Services are being provided as a private and/or public Beta, and are made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing us with feedback on the quality and usability of the Service. Such Beta Services may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers and computers) connected thereto. Vidyo strongly encourages you to back-up all data and information on your device and any peripherals prior to using the Service. You assume all risks and all costs associated with your use of any Beta Service. In addition, Vidyo is not obligated to provide any maintenance, technical or other support for any Beta Service. Vidyo reserves the right to modify, suspend or stop the Beta Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. As part of using the Beta Service, Vidyo will provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Service. You agree that in the absence of a separate written agreement to the contrary, Vidyo will be free to use any feedback you provide for any purpose.
2. PRIVACY; SECURITY; CONFIDENTIALITY
3. API ACCESS
If you are a User of our APIs, you may use the APIs (in accordance with and subject to the DLA) and our Service to develop software applications that interface with our Service (“Your Applications”), and make the Service available to your end users through the use of Your Applications. In connection with any such use of our APIs, the following shall apply:
(i) if the Service for which you have subscribed permits you to provide the Service to third parties (i.e. is not limited to your organization’s own communication needs), the restriction in the End User Terms relating to the provision of the Service to third parties does not apply to you in respect of your use of our APIs and Service;
(ii) you are solely responsible for, and hereby agree that you will obtain, all consents required under applicable law in connection with all use of the Service by Users’ and end-users of Your Applications (including all consents required for the processing of personally identifiable information); and
4. TERM AND TERMINATION
Term: The Service will be provided for the initial period set forth in the Order Form unless terminated earlier as set forth below (the “Initial Term”). Thereafter, additional Order Forms may renew or extend the time period during which you will have access to and right to use the Service (each such extension, a “Renewal Term” and together with the Initial Term, and subject to earlier termination as set forth below, the “Term”).
Termination: These Terms of Service shall be in effect, and shall serve as a legally enforceable agreement between you and Vidyo, during the Term and will terminate on the date that: (a) your Service is terminated as a result of the expiration without renewal of your subscription under your Order Form; or (b) you send us a notice indicating that you have terminated your use of the Service and that you direct us to deactivate your Administrator Account and all standard user accounts under it and in such case, the termination shall become effective 30 days after the notice shall be deemed to be effective. In addition, Vidyo may terminate your access to the Service at any time and effective immediately upon the provision of notice to you if you or any of your Users breach these Terms of Service or the End User Terms and such breach: (i) remains uncured 10 business days after your receipt of notice from Vidyo; or (ii) is not susceptible to cure. Vidyo may also terminate your access to any free or trial Service at any time effective immediately upon the provision of notice to you. We may discontinue or suspend the Service, at any time and without any liability to anyone, including you, other than, in the case of discontinuation or extended suspension other than due to an event of Force Majeure (as defined in the User Terms and Conditions), a refund of any unused portion of fees paid by you for the Service.
Effect of Termination: Upon the termination of these Terms of Service, all licenses and rights granted to you and to your Users shall be immediately revoked and you and they shall not make any further attempt to use the Service. You shall also remain responsible and liable for your use of the Service and that of your Users, and your breaches of these Terms of Service and that of your Users, and we shall cease granting access to the Service to anyone presenting your or your Users’ user identification and password as user credentials.
5. RELEASE, INDEMNIFICATION AND LIMITATION OF LIABILITY
YOUR USE OF THE SERVICE, AND THE USE OF THE SERVICE BY YOUR USERS, IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND TO YOU, ANY USER OR ANY OTHER PERSON OR ENTITY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER RELATING TO THE SERVICE OR THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, SERVICE AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE, TIMELINESS, ACCURACY OF RESULTS OF ANYONE’S USE OF THE SERVICE, SERVICE SECURITY, SERVICE RELIABILITY, FREEDOM FROM ERROR, COMPLETENESS, SATISFACTION OF USER REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS ONLY. NO ADVICE OR INFORMATION THAT WE PROVIDE YOU, ANY USER OR ANY OTHER PERSON OR ENTITY SHALL CREATE ANY REPRESENTATION OR WARRANTY ON OUR PART.
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU, ANY USER OR ANY OTHER PERSON OR ENTITY WHO USES, OR ATTEMPTS TO USE, ANY ASPECT OF THE SERVICE UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OUR PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THESE TERMS OF SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NOR SHALL WE BE LIABLE TO YOU, ANY USER OR ANY OTHER PERSON OR ENTITY WHO USES, OR ATTEMPTS TO USE, ANY ASPECT OF THE SERVICE FOR ANY INJURY THAT YOU, ANY USER OR ANY OTHER PERSON OR ENTITY SUFFERS AS A RESULT OF (A) ANY UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY CALL, OR ANY LOSS, INACCURACY OR CORRUPTION OF CONTENT TRANSMITTED ON ANY CALL, (B) ANY FAILURE OF THE SERVICE, (C) ANY ACTS OR OMISSIONS OF ANY THIRD PARTY, (D) ANY OTHER INJURY SUFFERED AS A RESULT OF THE USE OF OR OPERATION OF THE SERVICE, OR (E) ANY INFRINGEMENT CLAIM THAT ARISES OUT OF YOUR APPLICATIONS OR OUT OF CONTENT THAT IS TRANSMITTED BY THE SERVICE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY HEREUNDER TO YOU, ANY USER OR ANY OTHER PERSON OR ENTITY FOR ANY INJURY, DAMAGES OR LOSS THAT YOU, ANY USER OR ANY OTHER PERSON OR ENTITY SUFFER AS RESULT OF, OR IN CONNECTION WITH, YOUR OR THEIR USE OF THE SERVICE EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID TO VIDYO FOR THE SERVICE BY YOU DURING THE THEN-PRECEDING TWELVE (12) MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ALL ACTIVITIES CONDUCTED THROUGH YOUR USER ACCOUNTS BY YOUR ADMINISTRATORS AND/OR USERS, EVEN IF SUCH ACTIVITIES OCCURRED WITHOUT YOUR PERMISSION
You release us, and agree to indemnify, defend and hold harmless us, or subsidiaries and affiliates and their respective officers, employees, directors, employees, agents, advisors, successors and assigns from and against any and all third party claims, damages, liabilities, losses, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) suffered or incurred thereby that arise out of or relate to (i) use of the Service by you or any User or any end-user of Your Applications, (ii) violation by you or any User of any of the prohibitions set forth in these Terms of Service or breach of any provision of the End User Terms, (iii) any Content Transmitted on any Call which you or any User initiate or on which you or any User participate, (iv) the reliance by anyone on any Content Transmitted by means of the Service, or your connection to the Service.
Vidyo will defend or settle, at its option and expense, any action brought against you based upon the claim that the Service, if used in accordance with these Terms of Service, directly infringe a registered United States, European Union or Commonwealth patent or copyright (except to the extent that such action arises out of or involves Your Applications or Content that was Transmitted by means of the Service); provided, however, that: (i) you must notify us promptly in writing of any such claim; (ii) you may not enter into any settlement or compromise any claim without our prior written consent; (iii) we must have sole control of any such action and settlement negotiations; and (iv) you must provide us with information and assistance, at our request, necessary to settle or defend such claim. Provided that you comply with the foregoing, we agree to pay all damages and costs finally awarded against you that are attributable to such claim. The foregoing states the sole liability of Vidyo and your exclusive remedy for any infringement of intellectual property rights by the Service or any other items provided by Vidyo hereunder. Further, if the Service becomes, or in our opinion may become, the subject of a claim of infringement of any third party right, we may, at our option and discretion: (i) procure for you the right to use the Service free of any liability; (ii) replace or modify the Service to make it non-infringing; or (iii) terminate your access to the Service issue a refund of the fees paid under the Order Form, on a pro rata basis.
Notwithstanding the foregoing, we assume no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or attorney’s fees for, any claim based upon any modifications to the Service not provided by us or the combination or use of the Service with other products and services.
The parties to these Terms of Service are independent contractors with respect to your and any Users’ use of the Service and nothing herein shall be construed to create a partnership, joint venture or agency relationship. You may not assign your rights under these Terms of Service to any third party without our prior written consent and any such purported assignment will be null and void ab initio. We may assign these Terms of Service to any third party without your consent. These Terms of Service are governed by, and will be construed according to the laws of the State of New York, United States of America, without regard to conflict of laws rules that would otherwise apply laws of any other state or jurisdiction. You and we hereby consent to exclusive personal jurisdiction and venue in the federal and state courts located in New York. You and we each waive any right that either of us may possess to a jury trial in connection with any and all disputes arising out of or related to these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Service or these Terms of Service must be filed within one year after such claim or cause of action arose or be forever barred. Neither party shall be deemed to have waived any right hereunder unless you or we do so in writing. The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision. Any provisions of these Terms of Service which by their nature should survive the expiration or termination of these Terms of Service and the use of the Service shall survive such expiration or termination, and shall apply to the parties’ respective successors and permitted assigns. The Order Form, these Terms of Service and any End User Terms or other license agreements referenced herein or therein constitute the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous understandings and agreements between the parties concerning the subject matter hereof and cannot be amended except in writing, in accordance with their respective terms. You and we do not intend to have these Terms of Service confer any rights or privileges upon any third parties except our licensors and suppliers. Accordingly, there are no third party beneficiaries of these Terms of Service except our licensors and suppliers. Vidyo’s performance of the Services is subject to existing laws and legal process, and nothing contained in these Terms of Service shall prevent Vidyo from complying with governmental, judicial and law enforcement requests or requirements relating to User’s use of Vidyo’s website, the Service or information provided to or gathered by Vidyo with respect to such use. No terms or conditions set forth in any Order Form which are inconsistent with or in addition to the provisions hereof shall be binding on Vidyo unless expressly and specifically accepted in writing by Vidyo.
All notices from Vidyo under these Terms of Service may be sent to you by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information set forth in your Order Form. Notices to Vidyo must be given in writing and delivered either by hand, e-mail (receipt confirmed), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, to Vidyo Inc., 433 Hackensack Ave., Hackensack, NJ 07601, Attn: Customer Support or if by email, to firstname.lastname@example.org. All such notices to Vidyo shall be effective on the date actually received, or in the case of mailed notices, 3 business days (or 7 business days in the case of an international mailing) after such mailing. All notices relating to the Service will be provided by Vidyo to you. Vidyo may, but is not obligated to provide any notices relating to the Service to your Users and it is your sole responsibility to notify your Users of any event or occurrence affecting such Users.
CHANGES TO THESE TERMS OF SERVICE
We may change these Terms of Service at any time upon notice to you and our other customers. Your continued use of the Service shall constitute your acceptance of the then-current version of these Terms of Service; provided, however, that (i) if, within 30 days following our provision of any such notice, you provide us written notice of your objection to any such changes, such changes shall not be applicable to you for the remainder of the Initial Term or then-current Renewal Term as applicable, and (ii) in such event, your execution of any following Renewal Term shall be deemed to indicate your acceptance of the then-current version of these Terms of Service.
June 7, 2016