VIDYO API DEVELOPER LICENSE AGREEMENT

IMPORTANT: PLEASE READ THIS VIDYO API DEVELOPER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. YOUR DOWNLOAD, INSTALL OR USE (EACH AN “ACT OF ACCEPTANCE”) OF VIDYO’S API SOFTWARE CONSTITUTES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.

YOU CONSENT TO THE COLLECTION AND PROCESSING OF YOUR PERSONAL INFORMATION IN ORDER TO PROVIDE YOU WITH THE SOFTWARE (AS DEFINED BELOW).

IF YOU COMPLETE AN ACT OF ACCEPTANCE, YOU BIND NOT ONLY YOURSELF BUT THE ENTITY THAT EMPLOYS YOU OR HAS CONTRACTED WITH YOU TO PERFORM THE ACT OF ACCEPTANCE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY (THE “CONTRACTING ENTITY”) TO THIS AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO RIGHTS WHATSOEVER ARE GRANTED IN THE SOFTWARE (AS DEFINED BELOW). DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Vidyo, Inc. (“Vidyo”) licenses the SOFTWARE (as defined below) to you and your Contracting Entity (collectively, “Licensee”) subject to the following terms and conditions.

1. Software: The SOFTWARE shall consist of any or all of (i) software in binary object form (“Libraries”), (ii) documentation and interface definitions (“Documentation”) regarding the software object code and/or programming interfaces to one or more Vidyo products (“Vidyo Products”), (iii) sample code in source code form (“Sample Code”), and (iv) any other materials delivered in connection with any of the foregoing.
2. Governing Agreement: If Licensee and Vidyo are parties to a definitive agreement governing the provision of licenses to the SOFTWARE and/or the provision of support with respect to same (a “Governing Agreement”), in the event of a conflict between the terms of this Agreement and the terms of the Governing Agreement which relate specifically to the SOFTWARE, the terms of the Governing Agreement shall govern.
3. License:

   a. Subject to the restrictions below, Vidyo grants Licensee a non-exclusive, revocable, non- sublicensable, non-transferable license to:

   i. Download, install, and make a reasonable number of copies of the SOFTWARE for use by Licensee (and any third party developers or consultants it engages, provided that such developers and consultants shall be required to be bound by and accept the terms of this Agreement to the same extent as the Licensee and shall use the SOFTWARE only for the benefit of the Licensee, and Licensee shall be responsible for the compliance of such developers and consultants with the terms of this Agreement) solely for the purpose of evaluating the SOFTWARE and using it to develop, debug and test software that communicates with other Vidyo Products (“Licensee Software”); and

   ii. if authorized pursuant to the terms of a Governing Agreement, sublicense and distribute Licensee Software, which may incorporate the SOFTWARE, for internal use by its organization or to one or more third parties, as and to the extent specified in the Governing Agreement.

   b. This Agreement does not grant a license to any other Vidyo Product or service other than the SOFTWARE.

4. Restrictions: The license granted above is subject to the following restrictions:a. Licensee’s license rights pursuant to Section 3.a (ii) apply only to Licensee Software that adds significant additional functionality to the SOFTWARE;b. Licensee may not use the SOFTWARE (i) to design or develop anything other than Licensee Software or (ii) for a purpose other than communication with a Vidyo Product;

   c. Licensee may not, and may not permit Licensee’s sub-licensees and end-users to, modify, create derivative works of, or except as expressly permitted by applicable law, reverse engineer, reverse compile, or disassemble the SOFTWARE, except that Licensee may include any Libraries in Licensee Software and may modify and create derivative works of Sample Code;

   d. the Licensee Software may not contain any software, open source or otherwise, that requires, as a condition of use, modification and/or distribution of such software, that other software incorporated into, derived from or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributed at no charge;

   e. Licensee may not distribute the Documentation or any derivative thereof to any third party;

   f. Licensee may only distribute the SOFTWARE and any derivatives of the SOFTWARE in object code form and solely in conjunction with, and as part of, the Licensee Software and Licensee may not make any more copies of the SOFTWARE than are reasonably necessary for uses authorized herein and backup and archival purposes;

   g. In the case of distribution pursuant to Section 3.a(ii), Licensee Software which includes any Libraries will require each end-user to accept a Vidyo End-User License Agreement (“EULA”) to be provided by Vidyo (including via link), or another license agreement which contains provisions of the EULA no less beneficial to Vidyo and names Vidyo as a third- party beneficiary, before first use with a Vidyo Product, and will allow the user to access such EULA (or other license agreement) from an “About” button or similar functionality;

   h. Licensee may not use the SOFTWARE to design or develop software to (i) create, upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware; or ii) undertake any operation that violates the laws or regulations of any country in which such SOFTWARE is used or that violates the rights of any third party;

   i. Licensee understands that any Licensee Software which contains the Vidyo Client Library or any portion thereof will require activation of a Vidyo desktop/soft client license (obtained from Vidyo) from the device on which such Licensee Software is installed upon first connection to a Vidyo Product, and shall be subject to the limitations on any such license.

   j. No SOFTWARE may be used or incorporated in Licensee Software for use:

   i. Under section 3.a (ii) hereof, in or in connection with a computing device or other equipment (i) operated primarily as a videoconferencing endpoint in a dedicated conferencing room with multiple participants, and/or (ii) embedded in or bundled with other hardware to create a dedicated videoconferencing appliance, in either case without explicit written agreement from Vidyo and subject to such terms and conditions as it shall require in connection therewith.

   ii. In critical safety or other applications where any failure may reasonably be anticipated to result in bodily injury, loss of life, or catastrophic damage to property. The foregoing shall not limit use of the SOFTWARE for healthcare applications, which shall be subject to the limitations set forth below. Any promotion or marketing by Licensee or any sublicensee of aspects of Licensee Software dependent on or derived from the SOFTWARE for use in any applications described above are at Licensee’s sole risk. Healthcare Applications:Vidyo makes no representations or warranties that the Vidyo Products including the SOFTWARE can achieve:

   (i) unaltered transmission of still images, video images or audio; or

   (ii) continuous, uninterrupted and non-corrupted transmission of such still images, video images or audio). Licensee is hereby made aware and acknowledges that the Food and Drug Administration has not authorized the medical effectiveness of the SOFTWARE or the Vidyo Products. Licensee will indemnify and hold harmless Vidyo from any claim based on Licensee’s sale or promotion of Licensee Software for any application disclaimed in, or requiring attributes disclaimed in, this paragraph.

5. Intellectual Property: Vidyo retains ownership of the SOFTWARE, including without limitation all copyrights and other intellectual property rights therein. Vidyo retains all right title and interest in and to all improvements, patentable or otherwise, modifications and enhancements to the SOFTWARE, including those made by or based upon suggestions from Licensee (collectively, the “Modifications”), and all intellectual property rights therein and thereto. Nothing in this Agreement shall be construed as granting, expressly or by implication, to Licensee any ownership interest in the SOFTWARE and/or the Modifications. Portions of the SOFTWARE may include open source software, as further explained at https://www.enghousevideo.com/wp-content/uploads/Vidyo-OSS-Attributions.pdf
6. Trademarks/Certification/Markings: Licensee may not represent that the Licensed Software is certified or otherwise endorsed by Vidyo unless specifically authorized in writing by Vidyo. All Licensee Software which includes or accesses any Libraries will prominently display “Powered by Vidyo™” branding upon first use and in the “About” screen (or similar functionality). In addition, the “About” screen (or similar functionality) of any Licensee Software including or accessing any Libraries will contain the following language in respect of such Libraries: “Copyright (c) 2008-[current year] Vidyo, Inc. This product includes Vidyo Software Libraries which are covered by one or more issued or pending United States patents, as more fully detailed on the Patent Notice page of Vidyo’s website https://www.enghousevideo.com/about/patent-notices/, as well as issued and pending international patents. Portions of the Vidyo Software Libraries may include open source software, as further explained at https://www.enghousevideo.com/wp-content/uploads/Vidyo-OSS-Attributions.pdf. VIDYO, Vidyo logos and icons and trademarks of the VIDYO family of products are trademarks or registered trademarks of Vidyo, Inc., registered with the United States Patent and Trademark Office and/or in other jurisdictions.” Licensee may not display Vidyo trademarks in Licensee Software, in Licensee’s products or services  or otherwise other than as described above and in compliance with Vidyo’s branding guidelines located at https://www.enghousevideo.com/wp-content/uploads/Vidyo-Brand-Style-Guide.pdf
7. Updates: If Licensee is authorized to distribute Licensee Software to third parties pursuant to Section 3.a.ii, Licensee agrees to update License Software in connection with updates to the SOFTWARE provided by Vidyo in a reasonable and timely fashion after Vidyo makes them available.
8. Support: Licensee will not receive any Vidyo support, updates or subscription services for the SOFTWARE or any other services from Vidyo in connection with the SOFTWARE under this Agreement, unless Licensee purchases an API-specific support plan for the SOFTWARE.
9. Development Environment: If Licensee is entitled to access to the Vidyo Sandbox Development Environment (“Sandbox”) such access is at Licensee’s own risk and will be provided on an “as is” basis without warranty or guaranteed up time, and subject to frequent software version changes. Licensee further acknowledges (i) that the Sandbox is a shared platform, (ii) that the Sandbox may contain product versions different from what Licensee is using or has access to, and (iii) that Vidyo makes no representation with respect to the confidentiality of any software or other data uploaded by Licensee to the Sandbox or any information with respect to Licensee’s usage of the Sandbox. Licensee shall be responsible for any damage to the Sandbox or any software or other data of Vidyo or its other customers, resulting from Licensee’s use of the Sandbox. Licensee shall not (i) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs on the Sandbox; (ii) interfere with or disrupt the integrity or performance of the Sandbox or the data contained therein; or (iii) attempt to gain unauthorized access to the Sandbox or its related systems or networks.
10. Term, Termination and Changes: The licenses granted under this Agreement shall terminate (i) if Licensee is not in compliance with the terms specified herein, or (ii) as specified in the Governing Agreement (if any), or (iii) if the Governing Agreement (if any) has terminated, provided that any such license termination shall not affect any sublicenses for Licensee Software properly granted by Licensee hereunder prior thereto for which Licensee has made any payments required by any Governing Agreement. Licensee agrees, upon termination, to destroy all copies of the SOFTWARE within Licensee’s possession or control including any derivatives thereof. All provisions of this Agreement other than Section 3a shall survive any such termination.
11. Indemnification: Licensee agrees that Vidyo shall have no liability whatsoever for any use Licensee makes of the SOFTWARE. Licensee agrees to defend, indemnify and hold harmless Vidyo, and any of its directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys’ fees), arising from its activities under or any breach of the terms of this Agreement, including Licensee’s use of the SOFTWARE or any use of the SOFTWARE or Licensee Software permitted by Licensee.
12. Limitations of Warranties and Liability: THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIDYO DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIDYO SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SOFTWARE  ORLICENSEE’S USE OF THE SOFTWARE, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO LICENSEE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.

    VIDYO’S LIABILITY ARISING OUT OF THE SOFTWARE PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED THE LESSER OF THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE AND US$50,000.

    THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER VIDYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. Government Use: If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the SOFTWARE are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The SOFTWARE is a “commercial item”, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined and used at FAR (48 C.F.R.) 2.101 and FAR 12.212. In accordance with such provisions, any use of the SOFTWARE by the Government shall be governed solely by the terms of this Agreement, except for any provisions that are contrary to Federal law, which will be read out of this Agreement without impacting the validity and enforceability of any other provisions of this Agreement.
14. Export Controls: Licensee will not export or re-export the SOFTWARE including any Licensed Software in which it is incorporated without first having obtained any appropriate United States or foreign government export licenses. Licensee will not export the SOFTWARE or such Licensee Software to any country or any individual or entity to which export is prohibited by the United States, or to any country which is not a member of either the Universal Copyright Convention or the Berne Convention (a “Member Country”); provided, that any export to a Member Country is only permitted if such Member Country recognizes copyright protection for software.
15. Other Terms: This Agreement is governed by the laws of the State of New Jersey and the United States of America without regard to conflict of laws principles. Licensee may not assign any part of this Agreement without the prior written consent of Vidyo. Any attempted assignment by Licensee (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without consent shall be void. Except as provided in Section 2, this Agreement constitutes the entire agreement between Licensee and Vidyo with respect to the SOFTWARE, and supersedes all prior written or oral communications, understandings and agreements with respect thereto. Any waiver of this Agreement must be in writing to be effective. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will continue to be valid and enforceable to the fullest extent permitted by law.
16. Audit and Verification: During the term of this Agreement and for two (2) years thereafter, you will keep complete and accurate records relating to the Software and your compliance with the provisions of this Agreement (including your distribution activities, if applicable). Upon at least ten (10) days prior notice, you will permit Vidyo or its representatives, at Vidyo’s expense (except as provided herein), to examine and copy your physical and electronic records during your regular business hours, and you will reasonably cooperate with Vidyo in examining such records (e.g., by providing configuration log files upon request), for the sole purpose of and only to the extent reasonably necessary to verify your compliance with the provisions this Agreement. If any such examination conducted by Vidyo or its representatives determines any material non-compliance with the provisions of this Agreement (including without limitation, shortfall in fees to Vidyo), then, in addition to any legal remedies or equitable relief that may be available to Vidyo, you will be responsible for any expenses incurred by Vidyo for any such examination.
17. Changes: Vidyo reserves the right in its sole discretion, with or without notice, to change, modify, or update the SOFTWARE at any time, to impose additional restrictions or limitations or to change, modify or update the fees charged for all or a portion of the SOFTWARE. Vidyo also reserves the right to change, modify or update the terms of this Agreement at any time. If Vidyo revises the terms of this Agreement, Vidyo will post the revised Agreement on the Vidyo Developer Portal, and Licensee consents to receiving notice of any changes through such posting. If required by law, Vidyo will also provide Licensee notice of changes. If Licensee does not agree to the revisions, Licensee must cease to use the SOFTWARE and remove the Vidyo Product from Licensee’s applicable product or service. Licensee’s continued use of the SOFTWARE or use of the Vidyo Product on its products or services after the posting of the revised Agreement means that Licensee has accepted the new Agreement.

V08.03.2015