Cloud Terms of ServiceSoftware as a Service Agreement
Vidyo Inc., a Delaware Corporation, with its principle offices located at 216 Route 17 North, Suite 301, Rochelle Park, NJ 07662, US (“Vidyo”), and You (“Customer”), agree that the following terms and conditions (“Agreement”) shall apply to any order placed by Customer and accepted by Vidyo during the term of this Agreement.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with the entity named above. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity named above;
“Agreement” means this agreement between Vidyo and the Customer for the provision of Services, that incorporates these terms and conditions, including any Exhibits and Appendix, attached hereto and any amendments made to the Agreement from time to time as the case may be;
“Authorized User(s), / “User(s)” means the employees, agents and independent contractors of the Customer who are authorized with a right to use the Services in accordance with the Agreement;
“Confidential Information” shall have the meaning ascribed thereto in Section 12.
“Customer Data” shall mean electronic data and information submitted by or for Customer for the Services.
“Documentation” means the documentation for the Services made available by Vidyo to the Customer.
“Hardware” mean the same as defined in Exhibit C.
“Service(s)” including “Software as a Service” means the services Vidyo provides to the Customer under this Agreement;
“Software as a Service” means applications centrally hosted Vidyo which can be accessed over the Internet;
“Support” means the on-going support provided [or to be provided] by Vidyo to the Customer, but shall not include the provision of training services; and
“Vidyo Lines or Lines” means the maximum number of concurrent Customer users that may simultaneously access the Services. The number of Seat Licenses is as set forth on the Service Order Form(s), as detailed in Exhibit B.
RESTRICTIONS & RESPONSIBILITIES
Upon Vidyo’s acceptance of Customer’s order and Customer’s payment of associated Services fees, for the duration of the Services term defined in the order, Customer shall have the non-exclusive, non-transferable right to use the Services solely for internal business operations and subject to compliance with the terms of this Agreement. Services are for the use of Customer only, and may not be resold, leased, sublicensed or otherwise transferred or made available to or for the benefit of any other party.
Customer will not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services, remove any proprietary notices or labels, or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Vidyo or create unauthorized Internet links to the Service or mirror any content on any other server or wireless or Internet-based device.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services including Internet connectivity, needed to connect to, access or otherwise use the Services. Customer shall also be responsible for maintaining the security of Customer’s account, passwords and files and for all uses of Customer’s account with or without Customer’s knowledge or consent, and Customer hereby acknowledges and agrees that Vidyo shall have no responsibility for such matters. Customer may not terminate this Agreement or request any refund based on a failure of its equipment or any ancillary service to properly function with Vidyo Services.
Customer owns and accepts all responsibility for Customer Data, information or material that Customer and its Users process or submit to the Service in the course of using the Services. Customer agrees to separately back up all Customer Data. Customer at all times retains ownership of all Customer Data. Customer, and not Vidyo, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer shall provide notices to, and obtain any consents from, third parties as required by applicable law, rule or regulation in connection with Vidyo’s processing of Customer Data via the Services. Customer shall not process or submit to the Services any Customer Data that includes any “protected health information,” as defined under the Health Insurance Portability and Accountability Act, or Sensitive Personal Data as defined under the EU Directive 95/46/EC as enacted in the member states of the European Union or any similar or subsequent regulation.
Customer agrees to act as a reference to prospective Vidyo customers and agrees to furnish Vidyo with its logo vector artwork for use in the Suppplier’s printed and digital promotional and advertising materials, including its website.
Vidyo retains exclusive title to and all rights to the Services and its underlying technology, software, patents, know-how, associated documentation, in whole or in part, and anything developed and delivered under this Agreement, including all improvements, enhancements, modifications, and derivative works.
Customer retains exclusive title to and all rights to the Customer Data as well as any data that is derived from the Customer Data and provided to Customer as part of the Services.
Services shall be provided for the period as ordered (“Initial Term”) on the Software and Services Order Form (“ORDER FORM”) as shown in Exhibit B and shall automatically renew for the same period as the Initial Period (“Renewal Term”) unless Customer provides written notice of termination at least sixty (60) days prior to the end of the Initial Term or any Renewal Term. All applicable fees must be paid prior to the provisioning of the Services.
This Agreement commences on the date Vidyo starts providing services to Customer and continues, unless expired or terminated under Section 11 (Termination).
FEES & PAYMENTS
Customer agrees to pay for all Services ordered as set forth in the applicable ordering document. Services shall be invoiced to Customer annually in advance. All fees due under the Agreement are non-cancellable and the sums paid non-refundable. Customer is responsible to pay any sales, value-added or other similar taxes imposed by applicable law that Vidyo must pay based on the Services ordered, except for taxes based on Vidyo’s income. Customer agrees to reimburse Vidyo for reasonable expenses related to providing any on-site portion of the services. Fees for services listed on the order are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. All fees are exclusive of all goods and services tax (GST), foreign export duties, or any other similar taxes, however designated or levied against the sale, and/or use of the Services. Customer will pay any such tax Vidyo may be required to collect or pay to Vidyo. Vidyo reserves the right to increase fees upon the anniversary of this Agreement, with thirty (30) calendar days’ prior written notice to Customer.
Vidyo reserves the right to refuse credit terms and require order prepayment if it is determined that Customer is or has become a credit risk or if Customer fails to make timely payments. Customer agrees to pay Vidyo interest at a rate of one and one-half percent (1.5%) per month on the balance remaining unpaid, beyond the payment due date(s) set forth above. Any expenses associated with collections on past due invoices will be paid by Customer.
Disputes for invoiced items must be received by Vidyo in writing explaining the reason for dispute along with the supporting documentation supporting the claim within ten (10) business days of Customer’s receipt of invoice. Payment for the total amount of invoice, excluding the item(s) in any written dispute notice, will be due pursuant to the invoice terms. Vidyo will use its reasonable efforts to respond to any disputed item within ten (10) business days of receipt of notice of the written dispute. Once any dispute is resolved, invoice shall be paid within ten (10) days.
All the Professional Services work shall be payable as 50% deposit upfront and rest payable on Time and Material basis.
ORDERS & ACCEPTANCE
Each Customer order issued will be governed by this Agreement. Any order, signed by both parties, will constitute a binding commitment by Customer to accept the Services stated therein. Any terms and conditions stated on any purchase orders received under this Agreement will not apply and the terms and conditions of this Agreement will always govern and prevail.
The Services are accepted upon completion and use thereof.
HOSTED UNIVERSAL VIDYO LINES
Vidyo lines will be priced based on certain quantity levels. Customer will maintain the agreed guaranteed minimum number of lines as stated on the Order Form for the duration of the Agreement, if usage increases to the next quantity level, Vidyo will begin to invoice Customer at the new level. Any overages between quantity levels will be billed to Customer in arrears on a quarterly basis.
WARRANTY & SUPPORT
Vidyo shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Customer acknowledges that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by Vidyo or by third-party providers, or because of other causes beyond Vidyo’s reasonable control. Where reasonably possible, Vidyo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Customer’s sole and exclusive remedy for any non-conformance of the Service is to inform Vidyo of the non-conformance within 10 calendar days and permit Vidyo to work to fix such non-conformance.
Customer acknowledges, understands and agrees that complex Services are never wholly free from errors and/or defects and Vidyo gives no warranty or representation that the Services will be wholly free from such errors and/or defects. Vidyo does not warrant or represent that the Services will be compatible with any other software or systems that are not specified as compatible in the documentation or Customer’s third party software or systems. Vidyo shall use reasonable endeavours to maintain the availability of the Services to Customer, but does not guarantee 100% availability.
Vidyo will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, SERVICES ARE PROVIDED BY VIDYO AND ACCEPTED BY THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND VIDYO GIVES TO THE CUSTOMER NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICE OR THE PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, VIDYO DOES NOT WARRANT THAT THE SERVICES OR THE OPERATION THEREOF IS OR WILL BE ERROR‑FREE OR UNINTERRUPTED OR MEETS OR WILL MEET THE CUSTOMER’S REQUIREMENTS, AND PROVIDER GIVES NO IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE AND WHETHER ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Vidyo shall make available to Customer the Support Services as outlined in Exhibit A.
The Customer warrants the legality of the customer data and shall indemnify Vidyo and its indemnitees for any actual or alleged claim, action, lawsuit or any formal or informal proceeding resulting from the legality of the customer data or information that customer inputs while using the Service.
LIMITATION OF LIABILITY
EXCEPT FOR ANY MATTER FOR WHICH IT WOULD BE UNLAWFUL TO LIMIT, IN NO EVENT SHALL VIDYO BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE OR LOSS OR CORRUPTION OF DATA, ACCOUNT, PROFIT, BARGAIN, OR BUSINESS, INABILITY TO ACCESS VIDYO SERVICES, PERFORMANCE RELATED DELAYS, COMPUTER VIRUSES OR FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHER LEGAL THEORY. VIDYO’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO VIDYO IN THE PRECEEDING SIX (6) MONTHS. VIDYO SHALL HAVE NO LIABILITY FOR ANY CUSTOM DEVELOPMENT. NO ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION HEREUNDER MAY BE BROUGHT BY EITHER PARTY MORE THAN THREE (3) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, EXCEPT FOR AN ACTION FOR NON-PAYMENT. The Customer agrees that it has read and understood this section. In case of any conflict between this section and any other section of this Agreement, the provisions of this section shall prevail. For the avoidance of any doubt, this section shall remain in full force and effect notwithstanding the termination, repudiation or expiry of this Agreement.
Subject to the limitations below, Vidyo will indemnify Customer against any judgment, including costs and direct damages, rendered by a court of competent jurisdiction, against Customer which definitively concludes that the Services infringes an existing patent, trademark, copyright or trade secret. Customer agrees to provide written notice to Vidyo of the initiation of any such suit or proceeding, provide full authority, information, and assistance for defence, and permit Vidyo to assume defence upon Vidyo’s request. Customer agrees that Vidyo shall be relieved of its obligations under this section, unless Customer notifies Vidyo of such Claim within ten (10) calendar days after Customer’s receipt thereof and gives Vidyo the authority to proceed as contemplated herein and, at Vidyo’s expense (except as provided below), gives Vidyo the relevant information then in its possession and reasonable assistance for Vidyo, in Vidyo’s discretion, to settle and/or defend any such Claim.
If the Services become the subject of such an infringement Claim, or if it is determined by adjudication that the Services infringes same or if the sale or use of the Services is enjoined, then Vidyo may, at its sole option and expense either (a) procure for Customer the right to continue to use the Services; (b) replace the Services with other suitable and reasonably equivalent Services or parts thereof so that the Services becomes non-infringing; (c) suitably modify the Services so that the Services becomes non-infringing, or (d) if it is not commercially reasonable to take the actions specified in items (a), (b), or (c), terminate this Agreement and Customer’s use.
Vidyo shall not be liable for any compromise entered or settlement made by Customer without Vidyo’s prior written consent. In addition, Vidyo shall not be liable for any losses, costs, or damages, and Customer will indemnify, defend, and hold Vidyo harmless from any expenses, damages, costs, or losses resulting from any suit or proceeding based upon a claim arising from (1) compliance with Customer’s or Authorized User’s supplied designs, specifications, or instructions; (2) a modification of the Services by Customer; (3) the combination, operation, or use of the Services with any other product, data, or apparatus not provided by Vidyo; (4) the use of such Vidyo Services to practice any method or process which does not occur wholly within Vidyo Services; or (5) use of the Services in an manner otherwise as provided for in this Agreement. The right granted to the Services pursuant to this Agreement does not confer upon Customer and/or Authorized User any additional rights under any patent rights or copyrights.
Customer shall defend, indemnify and hold harmless Vidyo against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer’s use of the Services in an unlawful manner or in violation of the Agreement.
Either party may terminate this Agreement upon thirty (30) calendar days written notice if: (i) the other party materially breaches any of the terms or conditions of the Agreement and fails to correct the breach within a thirty (30) calendar day cure period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. The non-breaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach. Vidyo will have the right to suspend or terminate Customer’s right to use the Services, if Customer fails to pay any and all required fees, attempts a transfer or assignment of the right to use the Services except as expressly herein permitted or otherwise materially breaches this Agreement.
Upon any termination and upon Customer request, Vidyo, at its discretion, may make Customer Data available to Customer for electronic retrieval for a period of 30 days, but thereafter Vidyo may delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control
In the event of expiration or termination of this Agreement, the provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect until all obligations are satisfied. Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.
Vidyo may retain any document (including any electronic document) containing the Customer’s Confidential Information after the termination of the Agreement if Vidyo is obliged to retain such document by any law or regulation or other rule enforceable against Vidyo; or the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to Vidyo.
Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the other party, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, this Agreement, pricing and proposals, computer software, trade secrets, know-how, inventions, techniques, processes, programs, schematics, data, customer lists, financial information and sales and marketing plans. Each party shall at all times maintain in the strictest confidence and trust all such Confidential Information, which shall not be less than those measures employed by each party in protecting its own Confidential Information of equivalent value. Customer and its employees agree not to disclose such information to any third party.
The commitments set forth above shall not apply to any Confidential Information which:
- is now generally known or available or which hereafter through no act or failure on the part of the receiving party becomes generally known or available;
- is legally known to the receiving party at the time of receiving such information;
- is hereafter furnished to the receiving party by a third party without restriction on disclosure, where such third party legally obtained such information and the right to disclose it to the receiving party; or
- is independently developed by the receiving party without violation of any legal rights which the disclosing party may have in such information.
Except as may be required by applicable law, neither Party shall disclose to any third party the contents of this Agreement, or any amendments hereto without the prior written consent of the other Party.
Where the parties have entered into a separate confidential non-disclosure agreement (“NDA”) and the terms of the NDA are inconsistent with the terms contained herein, the terms of the NDA shall take precedence.
Both Parties agree that all Confidential Information disclosed hereunder shall remain the property of the discloser and may only be copied or reproduced as expressly permitted herein. Upon expiration or termination of this Agreement, Recipient shall return all Confidential Information to discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. All Confidential Information disclosed hereunder is provided by discloser without representation or warranty of any kind. The provisions of this Section 13 shall survive the expiration or termination of this Agreement for a period of three (3) years.
FORCE MAJEURE EVENT
Neither party shall be liable for any failure or delay (other than failure to make payment) caused by events beyond its control, including, without limitation, an act of war, any disease or viral outbreak, hostility, terrorism or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance of those of its obligations pursuant to this Agreement affected by the Force Majeure Event only for so long as such Force Majeure Event continues, and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
A party who becomes aware of a Force Majeure Event, which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will forthwith notify the other party; and will inform the other party of the period for which it is estimated that such failure or delay will continue. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
For the avoidance of doubt, downtime caused directly or indirectly by a Force Majeure Event; a fault or failure of the internet or any public telecommunications network; a fault or failure of the Customer’s computer systems, Web Browser, or networks; or scheduled maintenance carried out in accordance with this Agreement, shall not be considered a breach of this Agreement.
Any notice, approval, request, authorization, direction or other communications under this Agreement will be given in writing to the parties at the address set forth in the beginning of this Agreement, shall reference this Agreement and will be deemed to have been received: (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the party to whom the same is directed; (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt or (iv) three (3) business days after the mailing date, if sent properly addressed, return receipt requested, postage and charges prepared by First Class U.S. mail or any other means of rapid mail delivery of which a receipt confirming the foreign is produced. Either party may change its address by notifying the other party in writing as provided herein.
Subject to any express restrictions elsewhere in this Agreement, Vidyo may subcontract any of its obligations under the Agreement and Vidyo shall remain responsible to the Customer for the performance of any subcontracted obligations.
The interests of Customer in this Agreement are personal and shall not be assigned, transferred, shared or divided in any manner by Customer without the prior written consent of Vidyo. Neither this Agreement nor any rights under it may be assigned by Customer without Vidyo’s prior written consent. Any merger, consolidation, or change of ownership or controlling voting interest (“Change of Control Event”) of Customer shall be deemed an assignment under this agreement. Vidyo will only consent to assignment if Customer has paid Vidyo all amounts due under this Agreement and the assignee agrees to be bound by the terms and conditions of this Agreement. Vidyo shall be entitled to assign this Agreement and the rights granted hereunder to any affiliate, subsidiary or successor in interest to Vidyo’s business.
Each party shall, at its own cost and expense, procure and maintain in full force and effect during the term of this Agreement, policies of insurance in the minimum amounts reasonably necessary to perform their respective obligations under this Agreement. Upon a party’s request, the other party will immediately provide a copy of its certificate of insurance to the requesting party.
The laws of the State of Delaware, excluding its conflict of laws provisions, shall govern this Agreement. State and Federal Courts in Delaware shall have exclusive jurisdiction under this Agreement. In the event either party hereto institutes an action or other proceeding to enforce any rights arising under this Agreement, the party prevailing in such action or proceeding shall be paid all reasonable costs and attorney’s fees by the other party. In the event that the parties are domiciled in different countries, the following terms shall apply. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules and judgment on the award rendered by the arbitrator shall be binding and may be entered in any court having jurisdiction thereof. The place of arbitration shall be the city in the country closest in location to Vidyo’s legal entity executing this Agreement. The arbitration shall be conducted in English by one arbitrator mutually acceptable to the parties and selected in accordance with the ICDR International Arbitration Rules. The arbitrator shall not have the power to award any punitive damages or any damages excluded by this Agreement.
During the term of this Agreement and for a period of one (1) year following its termination, each party agrees that it will not, without the written permission of the other party, directly or indirectly, solicit, hire or otherwise engage the services of any person who is an employee of or is otherwise being utilized as a consultant or contractor by the other party. The foregoing will not prohibit general solicitations for employment not specifically directed towards employees of the other party.
If a court of competent jurisdiction holds any provision in this Agreement to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way, and a court of competent jurisdiction is authorized to modify the affected provision to preserve the parties’ intended benefits to the fullest extent permitted by law. Either party’s failure, at any time, to require the other party’s performance of any provision of this Agreement shall in no way affect that party’s right to enforce such provision, nor shall either party’s waiver of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
Vidyo shall perform activities under this Agreement only as an independent contractor and nothing contained herein shall be construed to be inconsistent with this relationship or status. Under no circumstances shall any personnel of Vidyo be considered to be an employee or agent of Customer. Nothing in this Agreement shall be interpreted as granting either Party the right or authority to make commitments of any kind for the other, implied or otherwise, without prior review and written agreement. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind.
The agreement, exhibits, any attachments, or Order Form (collectively referred to as “documents”) contain the base terms that govern the relationship between the parties. Any discrepancies, conflict or errors between various provisions of the documents shall be resolved by giving precedence in the following order: (i) any signed amendment; (ii) the terms and conditions in this SaaS Agreement; (iii) Exhibit A; (iv) any other Exhibit attached to the agreement; (v) the applicable Order Form; and (vi) any other attachment.
This Agreement and any relevant Order Form contain and constitute the entire understanding and agreement between the parties in connection with and about the subject matter of this Agreement and supersede all earlier and other agreements and understandings between them and all earlier representations by any party about such subject matter. Any representations, warranties, statements and assurances which are not expressly set out in this Agreement will not be of any effect. Each party warrants that there is no representation, warranty, promise, term, condition, obligation or statement upon which they have relied in entering into this Agreement. If a party has given any representation, warranty, promise or statement then (except to the extent that it has been set out in this Agreement) the party to whom it is given waives any rights or remedies which it may have in respect of it. This section shall not exclude the liability of a party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind this Agreement.