By accepting these Terms of Service (the “Terms”), you are agreeing that they govern your usage of and responsibility for the applicable Vidyo product(s) (the “Product(s)”) provided by VIDYO, Inc., a Delaware corporation with a principal place of business 433 Hackensack Ave., 7th floor, Hackensack, NJ 07601 (“Vidyo”). As used herein, “you” or “Customer” refers to the entity on whose behalf you have accepted these Terms.
IF YOU ARE UNWILLING TO ACCEPT THESE TERMS YOU MAY NOT USE THE VIDYO PRODUCT(S) AND SHOULD CONTACT THE VIDYO DEALER FROM WHOM YOU ACQUIRED IT/THEM (“VIDYO PARTNER”) PRIOR TO ANY USE, FOR A REFUND OF ANY AMOUNTS YOU HAVE PAID. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER YOUR RECEIPT OF THE VIDYO PRODUCT(S) FROM VIDYO OR YOUR VIDYO PARTNER.
- The Products are licensed to you on a term license basis (the “Term License”). Products are licensed for fixed terms and not sold, and as a result, title in such Products is not transferred to you.
- If you ordered your Vidyo Product with hosting provided by or through Vidyo, such products (“Hosted Products”) are also subject to the attached Hosted Product Terms of Service (which are incorporated herein), in addition to these Terms.
- Your Term License has an initial term (the “Initial Term”) as specified in the initial purchase order and an automatic renewal term of equal length unless varied pursuant to the terms hereof (“Renewal Term”; each, a “Term”). The Initial Term shall commence upon (i) in the case of hardware Products or software Products provided on fixed media, upon shipment of the Product from Vidyo, provided that the Initial Term specified on the relevant purchase order shall be extended by one additional month to allow for Product delivery, (ii) in the case of software-only Products provided through electronic transmission, when such Product is first made available for download by or transmission to you, or (iii) in the case of a Hosted Product, upon Vidyo first making the Product accessible to you. Payments for the Initial Term and any Renewal Term are due in advance and are non-refundable. Where payments for a Term are specifically permitted to be made in installments, they shall be due and required to be made in advance by the beginning of the installment periods to which they apply. Term License fees do not include fees for any third-party product or service, or any account therefor, to which a Product connects or with which it interfaces, which shall be your responsibility. Any amounts due under these terms may be invoiced by and paid to your Vidyo Partner. Any failure to pay amounts in respect of Initial Terms or Renewal Terms when due will result in cancellation of the Term License.
- After the Initial Term, a Term License will continue to automatically renew for successive additional Renewal Terms, unless you notify your Vidyo Partner in writing of a cancellation of the Term License no less than 30 days before the end of the then-current Term or Vidyo notifies you or your Vidyo Partner that it will no longer offer renewals of the Term License. In the absence of such a notification, you will be obligated to make payment for the next Renewal Term. Term Licenses may not be transferred.
- If your Product(s) may be ordered with different options (e.g. number of ports, lines or users, or for a different length Renewal Term), such options may be changed in respect of a Renewal Term through your Vidyo Partner no less than 30 days before the end of the then-current Term. Any such changes shall take effect as of the beginning of the succeeding Renewal Term. Unless otherwise agreed by Vidyo, no changes may be made to a Term License during a Term.
- Usage of a Product for more than the then-licensed capacity and options is prohibited. Any usage in violation of the foregoing may result in a fee of two times the applicable license fees for such usage being imposed by Vidyo, as well as any other applicable remedies Vidyo may have at law or equity, and Vidyo reserves the right, following the provision of notice, to terminate the Term License of and/or remotely disable any Product that is used in violation of the foregoing or otherwise in breach of any of these Terms or the relevant End User License Agreement.
- Vidyo reserves the right to include functionality in any Product, including license key requirements and access to any usage or other data stored on the Product, to ensure that it is used in compliance with its Term License, including these Terms and the relevant End User License Agreement, or otherwise to assist in managing Vidyo’s product and service portfolio or for license management.
- Upon the termination of a Term License for a hardware-based Product or in the event of a hardware-based Product replaced by Vidyo under applicable warranty or support terms (except for Hosted Products), you shall, at your expense, be responsible for the return of the Product at the location then specified by Vidyo or your Vidyo Partner within 10 business days from the date of the Product’s license termination or replacement. You may be charged for late returns at the rate of twice the then-applicable minimum Renewal Term with respect to the Product, for each period or portion thereof that such return is delayed, or assessed the cost of a new replacement product; provided that in either case, the Product shall not be licensed for use of any kind. You shall also be liable and charged for any damage to a returned Product, except for ordinary wear and tear, up to the cost of a new replacement Product.
- The validity, construction and performance of these Terms shall be governed by and construed in accordance with the laws of the State of New Jersey, United States, without reference to or application of choice of law rules or principles. The exclusive venue for any dispute arising under these Terms shall be within the competent courts in the State of New Jersey, USA. If any portion hereof is found to be void or unenforceable, the remaining provisions of these Terms shall remain in full force and effect. These Terms and all documents referenced herein, including the End User License Agreement applicable to your Product(s), are the parties’ entire agreement relating to their subject and supersede any prior or contemporaneous agreements on the subject. Vidyo may modify these Terms at any time, upon the provision of prior notice to you. Such modifications shall only be effective at the start of the next Renewal Term. Vidyo may use any contact information you provide in connection with your purchase or activation of your Product(s) or any third party service to which it connects for purposes of providing you with legal, financial or technical notices applicable to such products and/or these Terms.
Last updated March 31, 2014
Vidyo Hosted Products Terms of Service
APPLICABLE TO THE FOLLOWING VIDYO HOSTED PRODUCTS:
• VidyoH2OTM for Google+ Hangouts (hosted version)
By accepting these Terms of Service (the “Terms”), you are agreeing that they govern your usage of the applicable Vidyo Hosted Product(s). As used herein, “you” refers to the entity on whose behalf you have accepted these Terms.
IF YOU ARE UNWILLING TO ACCEPT THESE TERMS YOU MAY NOT USE THE VIDYO HOSTED PRODUCT(S) AND SHOULD CONTACT THE VIDYO DEALER FROM WHOM YOU LICENSED THE VIDYO HOSTED PRODUCT (“VIDYO PARTNER”) PRIOR TO ANY USE OF THE VIDYO HOSTED PRODUCT FOR A REFUND OF ANY AMOUNTS YOU HAVE PAID.
Use of your Vidyo Hosted Product is subject to the following terms and conditions:
a. Vidyo will host or arrange for the hosting of a specific instance of Vidyo Hosted Product for each Vidyo Hosted Product you license.
b. In relation to its hosting services, Vidyo’s sole responsibilities with respect to the Hosted Vidyo Product(s) shall be the initial hardware server configuration, providing you with remote access to the Vidyo Hosted Product(s), and ensuring the operation of the Vidyo Hosted Product(s) in accordance with its(their) material written specifications and connectivity to the Internet in accordance with the Service Level Agreement below. As between you and Vidyo, you shall have all other responsibility for administration, support and maintenance of the Vidyo Hosted Product(s), except as may be provided under the terms of any Vidyo support plan.
c. Use Restrictions:
i. You will not use your Vidyo Hosted Product(s) to undertake any illegal activities or to transmit any illegal content or content that violates the rights of any third party, as determined by applicable law.
ii. You will not use your Vidyo Hosted Product(s) for any purpose where any failure might reasonably be anticipated to result in bodily injury, loss of life, or catastrophic damage to property.
iii. You will use reasonable security precautions in accessing your Vidyo Hosted Product and will not use your Vidyo Hosted Product or your access thereto to: (i) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ii) interfere with or disrupt the integrity or performance of Vidyo’s hosting equipment and/or facilities and the data contained therein; or (v) attempt to gain unauthorized access to other instances of any Vidyo Hosted Product or any other hosted equipment not licensed by you.
iv. You agree to indemnify, defend, and hold harmless Vidyo from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim with respect to any breach by you of the foregoing Use Restrictions.
d. You acknowledge that you will not have physical access to the hosting facility. As a result, you will not be responsible for any damage to hardware utilized by your Vidyo Hosted Product that occurs in the hosting facility.
e. The Vidyo Hosted Product is provided on a hosted basis only. You shall not have any right to physically access or transfer the Vidyo Hosted Product. To change to a similar on-premise version of a Vidyo Hosted Product (if available), contact your Vidyo Partner.
f. You agree that Vidyo has the right to access, and will, if required by Vidyo, provide Vidyo with administrative access to, your Vidyo Hosted Product(s) to verify usage and to provide hosting and support services. Any data or information gained by Vidyo through such access will be kept confidential by Vidyo except as may be otherwise required by applicable law.
g. You acknowledge that the hosting facility used to host your Vidyo Hosted Product(s) may be anywhere in the world, except as may be otherwise specified in writing by Vidyo.
h. Your Vidyo Hosted Product(s) may store user IP addresses and other personal information in connection with its operations. As a result, you are responsible for ensuring compliance with any relevant data privacy laws in the jurisdiction(s) in which your Vidyo Hosted Product(s) will be accessed.
i. Vidyo support for hosting will be on a 24/7 basis per the Service Level Agreement below. Except for the Service Level Agreement, Vidyo makes no warranty with respect to the hosting services and expressly disclaims any warranties, expressed or implied, including but not limited to, any warranties of merchantability, fitness for a particular purpose, result or use, with respect to same. Vidyo does not guarantee that the Vidyo Hosted Product(s)’ connectivity to any third-party product, service or account will be error-free or uninterrupted. Nothing herein shall affect any warranty separately and explicitly provided with respect to the Vidyo Hosted Product(s) itself/themselves.
j. Hosted services, and access to the Vidyo Hosted Product(s), may be suspended or terminated by Vidyo upon the provision of notice by Vidyo, if (i) Vidyo has not received any payment for the Vidyo Hosted Product(s) when due and owing, (ii) you use the Vidyo Hosted Vidyo Product(s) beyond the applicable license term or in a manner not covered by the applicable license, including in excess of the licensed capacity or functionality, or (iii) you are in material breach of any of these Terms, the End User License Agreement applicable to your Vidyo Hosted Product(s), or any other terms applicable to your license of the Vidyo Hosted Product(s).
k. In addition, Vidyo may suspend hosting services to Customer without liability if: (i) Vidyo reasonably believes that the hosting services are being used in violation of applicable law; (ii) Customer fails to cooperate with any reasonable Vidyo investigation of any suspected violation of the Use Restrictions set forth above; (iii) there is a denial of service attack on Customer’s servers or other event for which Vidyo reasonably believes that the suspension of hosting services is necessary to protect its network or its other customers; or (iv) requested by a law enforcement or government agency. Access to Vidyo Hosted Product(s) will be unavailable during a suspension of hosting services. Vidyo shall give Customer written notice of a suspension under this paragraph, which notice shall be at least forty eight (48) hours in advance of the suspension unless a law enforcement or government agency directs otherwise or suspension on shorter or contemporaneous notice is necessary to protect Vidyo or Vidyo’s other customers from an imminent and significant risk. Vidyo shall not suspend the hosting services under this paragraph if the grounds for the suspension is cured during the notice period, and shall promptly reinstate suspended hosting services when the grounds for the suspension are cured.
l. Vidyo, its officers, employees or affiliates shall not have any liability to you or your affiliates, directors, officers, employees, distributors, or customers, or any other party for any destruction to property or bodily injury or for any loss of use, revenue or profit, goodwill, or any other indirect, special, incidental, punitive, or consequential damages (whether or not arising from strict or absolute liability or from the negligence of Vidyo) that arise in connection with your use of the Vidyo Hosted Product(s). In addition, in no event shall Vidyo’s liability from any claim resulting from your use of the Vidyo Hosted Product(s), in tort or in contract, exceed the amounts you paid with respect to the relevant Vidyo Hosted Product license(s) in the 12 months prior to the date of your claim.
i. Vidyo will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control (a “Force Majeure Event”).
ii. These Terms, the Service Level Agreement, the End User License Agreement applicable to your Vidyo Hosted Product(s), and all documents referenced herein, are the parties’ entire agreement relating to their subject and supersede any prior or contemporaneous agreements on the subject.
iii. Vidyo may modify these Terms and the Service Level Agreement at any time, upon the provision of prior notice to you. Such modifications shall only be effective at the start of the next hosting renewal period.
iv. Vidyo may use any contact information you provide in connection with your activation of your Vidyo Hosted Product(s) or any third party service to which it connects for purposes of providing you with legal, financial or technical notices applicable to such products and/or these Terms.
n. Any dispute arising under these Terms shall be subject to the laws of New Jersey, without regard to the conflict of law rules in the jurisdiction where the claim arose. In addition, you submit to the jurisdiction of the courts of New Jersey with respect to any dispute that arises hereunder.
Last updated March 27, 2014
Vidyo Hosted Product Service Level Agreement
During the license term for your Vidyo Hosted Product, your Vidyo Hosted Product will be operational in accordance with its material written specifications and connected to the Internet at least 99.9% of the time in any calendar month (the “Vidyo Hosted Product SLA”). If Vidyo does not meet the Vidyo Hosted Product SLA, subject to the requirements and exclusions under this Vidyo Hosted Product SLA, you will be eligible to receive the Service Credits described below from your Vidyo Partner. This Vidyo Hosted Product SLA states your sole and exclusive remedy for any failure by Vidyo to meet the Vidyo Hosted Product SLA.
Definitions. The following definitions shall apply to the Vidyo Hosted Product SLA.
- “Downtime” means, for a Vidyo Hosted Product, any period during which the Vidyo Hosted Product is not operational or connected to the Internet.
- “License Term” means the term of your then-current Vidyo Hosted Product license (and any associated Vidyo support plan).
- “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
- “Service Credit” means the following:
|Monthly Uptime Percentage||Days added to the end of the License Term at no additional charge|
|< 99.9% – >=99.0%||3|
|< 99.0% – >=95.0%||7|
You Must Request Your Service Credit. In order to receive any of the Service Credits described above, all amounts due and owing in respect of the Vidyo Hosted Product must have been paid (and any such amounts due and owing prior to the relevant Downtime must have been paid prior to such Downtime), and you must notify your Vidyo Partner, and such Vidyo Partner must notify Vidyo, within thirty days from the time you become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit your right to receive a Service Credit.
Maximum Service Credit. The aggregate maximum number of Service Credits to be issued to you for all Downtime that occurs in a single calendar month for a Vidyo Hosted Product shall not exceed fifteen days added to the end of your License Term. Service Credits may not be exchanged for, or converted to, monetary amounts, and in no event will result in a refund of any paid amount or credit against any current or future due and owing amount.
Vidyo Hosted Product SLA Exclusions. The Vidyo Hosted Product SLA does not apply to any Vidyo Hosted Product or license therefor that expressly excludes this Vidyo Hosted Product SLA (as stated in the documentation for such Vidyo Hosted Product) or any performance issues caused by: (i) a Force Majeure Event (as defined in the Terms); (ii) connectivity or performance issues attributable to the public Internet; (iii) any failure of, or any failure by you to acquire, license or otherwise maintain, any third party product or service, or any account therefor, to which the Vidyo Hosted Product connects or with which it interfaces; (iv) actions or omissions by you or on your behalf in configuring, administering or accessing the Vidyo Hosted Product, including any failure to perform an update to the Vidyo Hosted Product provided by Vidyo which is necessary to maintain the Vidyo Hosted Product’s functionality; or (v) Scheduled Customer Maintenance.
As used herein, “Scheduled Customer Maintenance” includes the installation of hot fixes, service packs, software and software upgrades, pre-failure hardware replacement, hardware upgrades, etc. It also includes shutdowns or reboots that occur in the normal course of maintaining a server. Customer will be notified in advance of a Scheduled Customer Maintenance event unless specifically agreed to otherwise. However, Vidyo reserves the right to perform emergency maintenance without notice and without incurring any obligations to provide service credits to Customer under the terms of this Service Level Agreement if the maintenance is reasonably necessary to maintain the operating functionality or security of any of the Vidyo Hosted Products.
Last updated March 27, 2014