Vidyo End User License Agreement including Limited Warranty,
and Disclaimer of Warranty. This End User License Agreement
will apply to you if you download, install or use the Vidyo
software in the Vidyo products. Please do not download,
install or use the Vidyo software and products before you
understand and agree with the terms of this End User License
Agreement. Vidyo End User License Agreement including Limited
Warranty, and Disclaimer of Warranty.
End User License Agreement
VIDYO, Inc. is a Delaware corporation with a principal
place of business 433 Hackensack Ave., 6th floor, Hackensack,
NJ 07601 (âVidyoâ). IMPORTANT: PLEASE READ THIS END USER
LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING
VIDYO OR VIDYO-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF
THIS AGREEMENT. THIS LICENSE OF THE SOFTWARE IS VALID ONLY
UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED
IN THIS LICENSE AGREEMENT. YOUR ACCEPTANCE WILL BE BY
INSTALLING OR DOWNLOADING THE SOFTWARE, OR USING THE EQUIPMENT
THAT CONTAINS THIS SOFTWARE. YOU ARE BINDING YOURSELF AND THE
BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, "CUSTOMER")
TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF
THIS AGREEMENT, THEN VIDYO IS UNWILLING TO LICENSE THE
SOFTWARE TO YOU AND (A) DO NOT DOWNLOAD, INSTALL OR USE THE
SOFTWARE, (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND,
OR, IF THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER VIDYO
PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND.
YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER YOUR
RECEIPT OF THE SOFTWARE FROM VIDYO OR AN AUTHORIZED VIDYO
RESELLER, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER
PURCHASER. Vidyo's technology is covered by U.S Pat. Nos.
7,593,032 B3 and 7,643,560, as well as additional
International patents or pending U.S. or International patent
applications owned by Vidyo, Inc. Conditioned upon compliance
with the terms and conditions of this Agreement, Vidyo grants
to Customer a nonexclusive and nontransferable license to use
for Customer's internal business purposes the Software and the
Documentation for which Customer has paid the required license
fees. "Documentation" means written information (whether
contained in user or technical manuals, training materials,
specifications or otherwise) specifically pertaining to the
Software and made available by Vidyo with the Software in any
manner (including on CD-Rom, or on-line). Customer's license
to use the Software shall be limited to, and Customer shall
not use the Software in excess of, a single Vidyo Product as
set forth in the applicable Purchase Order which has been
accepted by Vidyo and for which Vidyo has been paid the
required license fee. Unless otherwise expressly provided in
the Documentation, Customer shall use the Software solely as
embedded in, for execution on, or (where the applicable
documentation permits installation on non-Vidyo equipment) for
communication with Vidyo equipment owned or leased by Customer
and used for Customer's internal business purposes. No other
uses of the Software are authorized by this Agreement and any
unauthorized use of the Software shall be a violation of the
terms of this license and Agreement. Note For evaluation or
beta copies for which Vidyo does not charge a license fee, the
above requirement to pay license fees does not apply. 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 Customer uses or sells the
Products for use in any such applications, Customer
acknowledges that such sale or use is at Customerâs sole risk.
Customer will indemnify, defend and hold Vidyo and its
suppliers harmless from and against any and all liabilities
and costs arising out of or in connection with such sale or
use.
Limited Warranty
Express Warranty â Vidyo warrants that for a period of
one (1) year following shipment of the Product (i) the Product
hardware shall be free from defects in materials and
workmanship and (ii) the Licensed Software substantially
conforms to its published specification. For instructions to
make and process claims under this warranty, please contact
the Vidyo authorized reseller from whom you acquired the
Product Except for the foregoing, the Software is provided AS
IS. This limited warranty extends only to the Customer who is
the original licensee. Customer's sole and exclusive remedy
and the entire liability of Vidyo and its suppliers and
licensors under this limited warranty will be, at Vidyo's
option, repair, replacement, or refund of the Product if
reported (or, upon request, returned) to Vidyo or the party
supplying the Product to Customer. In no event does Vidyo
warrant that the Software is error free or that Customer will
be able to operate the Software without problems or
interruptions. In addition, due to the continual development
of new techniques for intruding upon and attacking networks,
Vidyo does not warrant that the Software or any equipment,
system or network on which the Software is used will be free
of vulnerability to intrusion or attack. Restrictions. This
warranty does not apply if the Software, Product or any other
equipment upon which the 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 Soft-ware modules; (f) any Software for which Vidyo
does not receive a license fee.
DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE,
ACCURACY OF INFOR-MATIONAL CONTENT, OR ARISING FROM A COURSE
OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED
TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY
DISCLAIMED BY VIDYO, ITS SUPPLIERS AND LICENSORS.TO THE EXTENT
AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS
LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE
SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW
LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT
APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND
CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
JURISDICTION TO JURISDICTION. This disclaimer and exclusion
shall apply even if the express warranty set forth above fails
of its essential purpose.
General Limitations.
This is a license, not a transfer of title, to the
Software and Documentation, and Vidyo and/or its licensor(s),
retain(s) ownership of all copies of the Software and
Documentation and intellectual property rights of the Product
and Software. Customer acknowledges that the Products,
Software and Documentation contain intellectual property
rights (such as international and united states trade secrets,
copyrights, patents, and patents pending) of Vidyo, its
suppliers or licensors including but not limited to the
specific internal design and structure of individual programs
and associated interface information. Accordingly, except as
otherwise expressly provided under this Agreement, Customer
shall have no right and Customer specifically agrees not to:
(i) transfer, assign or sublicense its license rights to any
other person or entity, or use the Software on unauthorized or
secondhand Vidyo equipment, and Customer acknowledges that any
attempted transfer, assignment, sublicense or use shall be
void; (ii) make error corrections to or otherwise modify or
adapt the Product, Software or create derivative works based
upon the Software, or permit third parties to do the
same;(iii) reverse engineer or decompile, decrypt, disassemble
or otherwise reduce the Software to human-readable form,
except to the extent otherwise expressly permitted under
applicable law notwithstanding this restriction; (iv) use or
permit the Software to be used to perform services for third
parties, whether on a service bureau or time sharing basis or
otherwise, without the express written authorization of Vidyo;
or (v) disclose, provide, or otherwise make available trade
secrets contained within the Products, Software and
Document-ation in any form to any third party without the
prior written consent of Vidyo. Customer shall implement
reasonable security measures to protect such trade secrets. To
the extent required by law, and at Customer's written request,
Vidyo shall provide Customer with the interface information
needed to achieve interoperability between the Software and
another independently created program, on payment of Vidyo's
applicable fee, if any. Customer shall observe strict
obligations of confidentiality with respect to such
information and shall use such information in compliance with
any applicable terms and conditions upon which Vidyo makes
such information available. Unless otherwise expressly
specified all taxes and duties relating to this Agreement, the
Products, or Software are excluded and shall be Customerâs
responsibility. Software, Upgrades and Additional Copies. For
purposes of this Agreement, "Software" shall include (and the
terms and conditions of this Agreement shall apply to)
computer programs, including firmware, as provided to Customer
by Vidyo or an authorized Vidyo reseller, and any upgrades,
updates, bug fixes or modified versions thereto (collectively,
"Upgrades") or backup copies of the Software licensed or
provided to Customer by Vidyo or an authorized Vidyo reseller.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1)
CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES
OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH
COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL
SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR
ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO VIDYO
EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER
PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO
USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING
AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP
PURPOSES ONLY. Proprietary Notices. Customer agrees to
maintain and reproduce all copyright and other proprietary
notices on all copies, in any form, of the Software in the
same form and manner that such copyright and other proprietary
notices are included on the Software. Except as expressly
authorized in this Agreement, Customer shall not make any
copies or duplicates of any Software without the prior written
permission of Vidyo. Term and Termination. This Agreement and
the license granted herein shall remain effective until
terminated as specified in the related order or under this
section. Customer may terminate this Agreement and the license
any time by destroying all copies of Software and any
Documentation. Customer's rights under this Agreement will
terminate immediately without notice from Vidyo if Customer
fails to comply with any provision of this Agreement. Upon
termination, Customer shall destroy all copies of Software and
Documentation in its possession or control. All
confidentiality obligations of Customer and all limitations of
liability and disclaimers and restrictions of warranty shall
survive termination of this Agreement. In addition, the
provisions of the sections titled " United States Government
Restricted Rights." and "General Terms Applicable to the
Limited Warranty Statement and End User License" shall survive
termination of this Agreement. Any other clauses which by
their terms are required for the enforcement of this Agreement
shall survive termination. Export. Products, Software and
Documentation, including technical data, may be subject to
U.S. export control laws, including the U.S. Export
Administration Act and its associated regulations, and may be
subject to export or import regulations in other countries.
Customer agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain
licenses to export, re-export, or import Products, Software
and Documentation.
United States Government Restricted Rights.
The Software and Documentation are provided with
Restricted Rights and qualify as âcommercial itemsâ consisting
of âcommercial computer softwareâ and âcomputer software
documentationâ as such terms are defined and used at FAR (48
C.F.R.) 2.101 and FAR 12.212 . Use, duplication, or disclosure
by the government is subject to restrictions as set forth in
subparagraph (c)(f)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c) (1) and (2) of the Commercial Computer
Software-Restricted Rights at 48 C.F.R. S:52.227-19, as
applicable. General Terms Applicable to the End User License
Limited Warrant Statement and Disclaimer of Liabilities.
REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL VIDYO OR ITS
SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR
DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE
DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF
LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITYTO
USE SOFTWARE OR OTHERWISE AND EVEN IF VIDYO OR ITS SUPPLIERS
OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. In no event shall Vidyo's or its suppliers' or
licensors' liability to Customer, whether in contract, tort
(including negligence), breach of warranty,or otherwise,
exceed the price paid by Customer for the Software that gave
rise to the claim or if the Software is part of another Vidyo
Product, the price paid for such other Vidyo Product. BECAUSE
SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR
EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU. Customer agrees that the
limitations of liability and disclaimers set forth herein will
apply regardless of whether Customer has accepted the Software
or any other product or service delivered by Vidyo. Customer
acknowledges and agrees that Vidyo has set its prices to end
users and to Vidyoâs authorized resellers and entered into
this Agreement in reliance upon the disclaimers of warranty
and the limitations of liability set forth herein, that the
same reflect an allocation of risk between the parties
(including the risk that a contract remedy may fail of its
essential purpose and cause consequential loss), and that the
same form an essential basis of the bargain between the
parties. The validity, construction and performance of this
Agreement 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
this Agreement shall be within the competent courts in the
State of New Jersey, USA. The United Nations Convention on the
International Sale of Goods shall not apply. If any portion
hereof is found to be void or unenforceable, the remaining
provisions of the Agreement shall remain in full force and
effect. Except as expressly provided herein, this Agreement
constitutes the entire agreement between the parties with
respect to the terms herein and Documentation and supersedes
any conflicting or additional terms contained in any purchase
order or elsewhere, all of which terms are excluded. This
Agreement has been written in the English language, and the
parties agree that the English version will govern.
Infringement Indemnification.(a) Vidyo will defend or settle,
at its expense, any action brought against Customer based upon
the claim that the Software or Product, if used within the
scope of the License granted under this Agreement, directly
infringe a registered United States, European Union or
Commonwealth patent or copyright; provided, however, that: (i)
Customer shall notify Vidyo promptly in writing of any such
claim; (ii) Customer shall not enter into any settlement or
compromise any claim without Vidyo's prior written consent;
(iii) Vidyo shall have sole control of any such action and
settlement negotiations; and (iv) Customer shall provide Vidyo
with information and assistance, at Vidyo's request, necessary
to settle or defend such claim. Vidyo agrees to pay all
damages and costs finally awarded against Customer
attributable to such claim. The foregoing states the sole
liability of Vidyo and the exclusive remedy of Customer for
any infringement of intellectual property rights by the
Product or any other items provided by Vidyo hereunder.(b) If
the Product or Software becomes, or in the opinion of Vidyo
may become, the subject of a claim of infringement of any
third party right, Vidyo may, at its option and in its
discretion: (i) procure for Customer the right to use the
Product free of any liability; (ii) replace or modify the
Product to make it non-infringing; or (iii) repurchase the
applicable licenses or Products. (c) Customer will defend or
settle, at its expense, any action brought against Vidyo based
upon the claim that any modifications to the Product or
combination of the Product with products infringes or violates
any third party right; provided, however, that: (i) Vidyo
shall notify Customer promptly in writing of any such claim;
(ii) Vidyo shall not enter into any settlement or compromise
any such claim without Customer's prior written consent; iii)
Customer shall have sole control of any such action and
settlement negotiations; and (iv) Vidyo shall provide Customer
with information and assistance, at Customer's request and
expense, necessary to settle or defend such claim. Customer
agrees to pay all damages and costs finally awarded against
Vidyo attributable to such claim.(d) Notwithstanding
Subsection (a) above, Vidyo assumes no liability hereunder
for, and shall have no obligation to defend Customer or to pay
costs, damages or attorney's fees for, any claim based upon
any modifications to the Product not provided by Vidyo or
combination of the Product with other products.