End User License Agreement
THESE TERMS AND CONDITIONS (“AGREEMENT”) ARE APPLICABLE TO ANY THIRD PARTY, WHO INSTALLS, DOWNLOADS, AND/OR USES ENGHOUSE SOFTWARE (“CUSTOMER or YOU or YOUR”). BEFORE YOU SELECT “I AGREE” OR “I ACCEPT” IN REFERENCE TO THIS AGREEMENT, PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS THEY DEFINE YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SOFTWARE. BY SELECTING “I AGREE” OR “I ACCEPT” OR INSTALLING, DOWNLOADING OR USING THE SOFTWARE IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY AND TO BECOME A PARTY TO THIS AGREEMENT.
SERVICES OR SOFTWARE LICENSE TERMS AND CONDITIONS
1.1 Rights Granted to You: Vidyo grants to You a non-exclusive, non-transferable, license for a right to access, to install, use and execute the Services or Software in object code form on a per-license basis, such Services or Software shall be limited to the site(s), number of seats, Concurrent Users, agents, clients, servers, ports, devices, managed applications, and/or copies as applicable to the Services or Software obtained. The Services or Software shall become effective upon delivery of the Services or Software and shall remain in force unless terminated pursuant to this Agreement. This right does not include permission to grant sub-licenses or otherwise transfer such rights. You may not reverse engineer, disassemble or otherwise translate the Services or Software provided pursuant to this Agreement. Vidyo, or any third party (if applicable) that owns the Services or Software, retains exclusive title to and all rights to the Services or Software. You acknowledge that the Services or Software and documentation are the property of Vidyo and that the only right You have to the Services or Software is the right of use in accordance with the terms of this Agreement. Vidyo reserves the right to electronically confirm that Services are being used in conformance to these terms and in amounts purchased from Vidyo.
1.2 Services or Software Title: No title to or ownership of the Services or Software or any of its parts, the information it contains or in any applicable rights therein, such as patents, copyrights and trade secrets, is transferred to You. Any reference to “sale”, “purchase” or “subscription” of the Services or Software shall be deemed to mean, “Right to use or access and License on the terms contained in this Agreement.” Vidyo considers the information contained in the Services or Software owned or created by Vidyo to be trade secrets of Vidyo and any third-party Services or Software licenses, which Vidyo may resell to You to be trade secrets of such third-party licensor. You agrees to treat Services or Software as Confidential Information and shall use the same degree of care used to protect your own Confidential Information. Except as set forth herein, or as may be permitted in writing by Vidyo, You will not provide, transmit or otherwise make available, the Services or Software or any part or copy thereof to any third party, reverse engineer, reverse compile or reverse assemble the Services or Software in whole or in part, or attempt to derive the source code, modify, adapt, translate, or create derivative works of the Services or Software or any updates or any part thereof.
1.3 Restrictions: You may not publish, display, disclose, sell, rent, lease, loan, or distribute the Services or Software, or any part thereof. You may not assign, sublicense, convey or otherwise transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder with respect to the Services or Software. You may not market, co-brand, and private label or otherwise permit third parties to link to the Services or Software, or any part thereof. You may not use the Services or Software, or any part thereof, in the operation of a service bureau or for the benefit of any other person or entity. You may not cause, assist or permit any third party to do any of the foregoing.
1.4 Third Party Services or Software: Some third party Services or Software (including some imbedded Services or Software) are exclusively licensed pursuant to third party EULAs which will be provided upon request. All third party Services or Software are restricted for use solely in conjunction with the particular Services or Software intended by Licensor to be used therewith or with which Vidyo provides the third party Services or Software, and may not be used with any other products, or on a stand-alone basis.
1.5 Use of Products: Products are not authorized for use 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. If You use or sell the Products for use in any such applications, You acknowledges that such sale or use is at your own sole risk. You will indemnify, defend and hold Vidyo and its suppliers and licensors harmless from and against any and all liabilities and costs arising out of or in connection with such sale or use.
2.1 Limited SaaS Warranty: 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. You acknowledge 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. Your sole and exclusive remedy for any non-conformance of the Service is to inform Enghouse of the non-conformance and permit Enghouse to work to fix such non-conformance. If Enghouse is not able to fix the non-conforming Services, Customer may elect to not use the Service.
2.2 Limited Software Warranty: Vidyo warrants, for a period of thirty (30) days from date of delivery, that the Software will substantially conform to the published specifications prevailing at the time of purchase or delivery. Vidyo’s sole obligation and liability hereunder will be to use reasonable efforts to remedy any such non-conformance, which is reported to Vidyo in writing within the warranty period. The exclusive remedy for any breach of the foregoing warranties is for Vidyo to repair, modify, replace or re-perform (as applicable). Notwithstanding the foregoing, if longer warranty periods are mandated under applicable law those periods shall apply for that location only.
2.3 Disclaimer of Warranty: Except as otherwise specifically provided in this section, Services or Software is provided by Vidyo and accepted by You “as is” and Vidyo gives to You no other representation or warranty of any kind, express or implied, with respect to Services or Software or the performance or results of use thereof. Without limiting the foregoing, Vidyo does not warrant that the Services or Software or the operation thereof is or will be error free or uninterrupted or meets or will meet your requirements, and Vidyo 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.
2.4 Restrictions: This warranty does not apply if the Services or Software or any other equipment upon which the Services or Software is authorized to be used (a) has been altered, except by Vidyo or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Vidyo, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes. This warranty also does not apply to (e) any temporary Services or Software modules; (f) any Services or Software for which Vidyo does not receive a license fee.
LIMITATION OF LIABILITY
In no event shall Vidyo be liable for any damages resulting from loss of use, data, profit or business or for any punitive, exemplary, special, direct, indirect, incidental or consequential damages, whether arising in contract, tort or other legal theory. Vidyo shall be limited to the purchase price paid by You for the Services or Software under the specific order relating to the claim in the prior six (6) month period. Vidyo shall have no liability for any custom application programs. 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.
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 Services or Software, trade secrets, know-how, inventions, techniques, processes, programs, schematics, data, You 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. You and its employees agree not to disclose such information to any third party.
TERM AND TERMINATION
5.1 This Agreement and the license granted herein shall remain effective until terminated as specified in the related order or under this section.
5.2 You may terminate this Agreement and the license any time by destroying all copies of Software and any Documentation.
5.3 Your rights to assess the Services or use the Software under this Agreement will terminate immediately without notice from Vidyo if You fail to comply with any provision of this Agreement.
5.4 Upon termination, You must destroy all copies of Software and Documentation in its possession or control. All your confidentiality obligations and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.
6.1 Injunctive Relief: You acknowledge that remedies at law may be inadequate to provide Vidyo with full compensation in the event of Your material breach of any: (i) right to access or license grant hereunder, (ii) confidentiality and nondisclosure obligations herein, or (iii) intellectual property rights of Vidyo, and that Vidyo shall therefore be entitled, without bond or other security obligation, to seek injunctive relief in the event of any such material breach.
6.2 Verification: At the request of Vidyo, You shall furnish Vidyo with a signed statement that the Services or Software is being used pursuant to the terms and conditions of this Agreement. If Vidyo has reason to believe that the Services or Software is not being used in accordance with the terms and conditions of this Agreement, You shall permit Vidyo to review your relevant records and inspect your facilities to verify compliance with this Agreement. In the event such inspection results in fees due to Vidyo, You shall immediately pay thoe fees to Vidyo, and any reasonable inspection costs.
6.3 Exports: This Agreement is expressly made subject to applicable export control laws, including U.S. export control laws, regulations, orders or other restrictions on the export of the Services or Software or information about such Services or Software which may be imposed from time to time. You shall not export the Services or Software, documentation or information about the Services or Software and documentation without complying with such laws, regulations orders or other restrictions. You agree to indemnify Vidyo and its licensors against all claims, losses, damages, liabilities, costs and expenses, including reasonable legal fees, to the extent such claims arise out of any breach of this section.
6,4 United States Government Commercial License Rights This section applies only if You are a United States Government entity. The Service or Software and Documentation qualify as “commercial items” consisting of “commercial computer software” and “computer software documentation” as such terms are defined and used at FAR (48 C.F.R.) 2.101 and FAR 12.212. You agree to be bound by this Agreement, except for any provisions that are contrary to Federal law, and further agrees that any provisions that are contrary to Federal law will be read out of this Agreement without affecting the validity and enforceability of any other provisions of this Agreement.
6.5 Software Installation Services: You may purchase installation services from Vidyo for any products and/or services ordered. As conditions to such installation, You will permit Vidyo reasonable access to the installation site, will prepare the installation site in accordance with Vidyo’s site preparation specifications and will store the delivered products at the site until the installation date.
6.6 Your Responsibility: You will assign a knowledgeable representative to act as project manager to provide information, answer questions and make decisions on behalf of You. You are responsible for the acquisition of all peripheral equipment such as NT1s, PCs and printers and are also responsible for the initial and recurring costs of network services. You are responsible for installation of any local area network, host computer and telephone system connectivity required to support the Installation. Prior to Installation, You are responsible for providing: (i) a completed and accurate site preparation checklist; and (ii) a stable operating environment (network, host computer, servers, telephone system, etc.). In no event shall Vidyo be liable for any failure or delay caused by events beyond its control, including, without limitation, your failure to furnish the necessary information to Vidyo to fulfill this Agreement and/or a completed site preparation checklist or failures or substitutions of your Existing System.
6.7 Training: If You purchases any training classes and/or consulting services, You has up to six (6) months from the date of the purchase to schedule and complete the services. In the event You fail to do so, due to no fault of Vidyo, all fees paid toward such classes shall not be refunded. You shall be responsible for all expenses incurred by Vidyo employees in connection with this training, including course fees and potential travel expenses.
6.8 Software Maintenance and Support: You are obligated to purchase Maintenance and Support Services in order to use the license(s). Software releases will be delivered on a load and leave or electronically transferred basis.
6.9 Force Majeure: Vidyo shall not be liable for any failure or delay caused by events beyond its control, including, without limitation, sabotage, failures or delays in transportation or communications, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or any viral outbreak or pandemic or epidemic or terrorist act. If Vidyo fails to meets the schedule or perform any services or provide delivery as a result of any such event or circumstance beyond its own direct control, Vidyo shall have the right to make delivery within a reasonable time after the cause of such delay has been removed, and You shall be obligated to accept deferred Delivery.
6.10 Entire Agreement: This Agreement is the entire agreement of the parties regarding the subject matter hereof. This order, the definition of terms used performance hereunder, and the interpretation of this order shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of law provisions. In the event that the parties are domiciled in different countries, “any controversy or claim arising out of or relating to this Agreement, 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 United Kingdom. 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.