VXG LICENSE AND TERMS OF SERVICE

 

This VXG LICENSE AND TERMS OF SERVICE agreement (this “Agreement”) contains the terms and conditions that govern access to and use of the VXG Video Platform, documentation and related cloud services, and is an agreement between VXG Inc. (“VXG”) and you or the entity you represent (“Customer” or “You”).  Customer and VXG may be individually referred to as a “Party” or collectively as the “Parties”.

 

This Agreement takes effect when an “I Accept” button or check box presented with these terms is clicked (the “Effective Date”). The Agreement includes, the AUP, Privacy Statement, SLA, (all as defined in Article 1 (Definitions) below), and all such documents are incorporated into this Agreement by reference.  You represent to VXG that you are lawfully able to enter into contracts (e.g., you are not a minor).  If you are entering into the Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

 

VXG has developed and licenses the VXG Video Platform – a collection of modules for building video playback, encoding and streaming solutions for Mobile and Web which includes:

 

(a)           A video server component (“Video Gateway”) to supply customers with a tool to implement self-hosted video streaming, recording and processing servers,

(b)           An auto-scaling video service (“Video Cloud”) to supply customers with an automatically scalable cloud-based video streaming, recording and processing platform,

(c)           A software development kit (“Web SDK”) to supply customers with tools to develop customer-hosted web video front-ends for their video services based on the Video Gateway or Video Cloud, and

(d)           Software development kits (“Mobile Video SDKs”) to supply customers with tools to facilitate the development of custom video playback and encoding applications for use in the local environment of IOS and Android mobile devices, or in combination with the Video Gateway or Video Cloud.

 

Your choice of VXG product components (likely a combination of the above) will determine the software, documentation and cloud services available to you under this Agreement, and you will be issued one or more corresponding License Keys (as defined in Article 1 (Definitions) below).  The duration of Your license (perpetual or limited term), scope of use of VXG software (one or more project applications, gateways, etc.) and cloud service usage will determine the VXG license(s) required and applicable license and service fees. Evaluation versions of (or on-line evaluation access to) all VXG Video Platform components are provided free of charge, but are restricted by streaming or playback/encoding time limits and on-screen watermarks.

 

Now therefore, in consideration for the commitments set forth below, the adequacy of which consideration the Parties hereby acknowledge, the Parties agree as follows.

 

1.   DEFINITIONS.   In this Agreement:

1.1.   Affiliate” means any entity that, directly or indirectly, through one or more intermediates, is controlled by, controls, or is under common control with a Party (with “control” meaning ownership of more than fifty percent (50%) of the voting stock of the entity or, in the case of a non-corporate entity, an equivalent interest);

 

1.2.   AUP” means VXG’s acceptable use policy, as modified from time to time, that is available at www.videoexpertsgroup.com/legal/;

 

1.3.   Business Purpose” means the sole purpose of conducting Customer’s business operations relating to its value-added video streaming, recording and/or processing products and services, and not for any other commercial purpose;

 

1.4.   Client” means any third party to whom Customer sublicenses Device Components, or gives access to the Service, for redistribution to End Users (including but not limited to its employees, agents and contractors);

 

1.5.   Cloud Components” means any elements of the Service which VXG provides through its (or its hosting providers’) computers;

 

1.6.   Confidential Information” means any non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in any form (written, oral, etc.) that is designated as confidential when it is disclosed or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of the disclosure, including but not limited to intellectual property, know-how, trade secrets, product designs, product specifications, formulas, compositions, software, developer documentation, application programmer interfaces, drawings, processes, technical, sales, marketing, financial and other strategic or sensitive business information or data, including but not limited to any copies or tangible embodiments containing such information.  All License Keys, Licensed Software Source Code, Documentation and VXG financial information is Confidential Information of VXG, whether or not it is so designated.  Confidential Information does not include Customer Data;

 

1.7.   Customer Components” means any elements of the Licensed Software that VXG provides to Customer for Customer to host on its (or its hosting providers’) computers to deliver services to End Users, as described in corresponding Documentation;

 

1.8.   Customer Data” means any information (including but not limited to video content and data) about Customer, Clients or End Users that is supplied to VXG by or on behalf of Customer, or any Client or other End User, in connection with the: Service, Device Components, Customer Components, performance of this Agreement, or any related development, maintenance or support engagement (including but not limited to mobile device and computer information).  Customer Data may include Personal Information but does not include Service Data;

 

1.9.   Derivative Work" means any work made by Customer (or for Customer by a third party contractor) pursuant to this Agreement, that is a revision, modification, translation, expansion, extension, collection, condensation or abridgement of Licensed Software provided by VXG to Customer in Source Code form;

 

1.10.   Device Components” means any elements of the Licensed Software that VXG provides to Customer to sublicense in executable binary form (i.e., not as separate components, such as object code libraries) to End Users for use on mobile devices, as described in corresponding Documentation;

 

1.11.   Documentation” means any guides, manuals, developer documentation, Source Code, release notes, instructions, policies and reference materials that VXG provides to Customer for the Licensed Software or Service, as applicable, as such materials may be modified by VXG from time to time;

 

1.12.   End User” means any individual or entity who: (a) is an end user of Device Components on a mobile device, or (b) who accesses the Services using Customer’s account, including but not limited to Customer, Clients, and their respective employees, agents and contractors;

 

1.13.   "License Key" means any VXG-issued license key that includes an encrypted form of Customer’s license and service entitlements.  License Keys are delivered by VXG by e-mail or through Customer’s dashboards after purchase, and come in the following forms (customers typically purchase a combination of License Keys to meet their requirements):

 

(a)           Perpetual Mobile License Key” or “PMLK” means a perpetual term License Key for a Mobile Video SDK.  It is bound to an application package name or bundle identifier (e.g., “com.example.player”).  If the application package name doesn't match the license then the SDK will switch to demo mode, with a 2 minute limit and display watermarking.

 

(b)           Term Mobile License Key” or “TMLK” means a time-limited License Key for a Mobile Video SDK.  It is also bound to an application package name or bundle identifier. If the TMLK is not updated before its expiration date then the Mobile Video SDK will switch to demo mode.

 

(c)           Perpetual Gateway License Key” or “PGLK” means a perpetual term License Key for a Web SDK and one or more Video Gateways.  It is bound to a domain name or IP address.  If the domain name or IP address does not match then the Video Gateway(s) will switch to demo mode, with a 2 minute limit.  PGLK-enabled Video Gateways contact VXG’s license server to check that not more than the licensed number of Video Gateway instances are running in parallel.

 

(d)           Term Gateway License Key” or “TGLK” means a time-limited License Key for a Web SDK and one or more Video Gateways.  It is also bound to a domain name or IP address.  If the domain name or IP address does not match, or if the TGLK is not updated before its expiration date, then the Web SDK and Video Gateway(s) will switch to demo mode, with a 2 minute limit.  TGLK-enabled Video Gateways contact VXG’s license server to check that not more than the licensed number of Video Gateway instances are running in parallel.

 

(e)           Cloud License Key” or “CLK” means a License Key for a Web SDK and for the Video Cloud.  It is bound to customer’s Video Cloud account.  The Video Cloud limits CLK-enabled access to the usage and terms of Customer’s plan.  If plan usage or terms are exceeded then VXG will notify Customer or discontinue Video Cloud service for the CLK;

 

1.14.   Licensed Software” means: (a) for a valid Mobile Video SDK license, the Android and/or IOS libraries (in Object Code), sample applications (in Source Code), and corresponding Documentation and Updates provided to Customer by VXG for use under this Agreement, (b) for a valid Web SDK license, the web scripts and html files (in Source Code), and corresponding Documentation and Updates provided to Customer by VXG for use under this Agreement, (c) for a valid Video Gateway license, the binary package(s) (in Object Code), web scripts (in Source Code) and/or virtual machine image(s) (in Object Code), and corresponding Documentation and Updates provided to Customer by VXG for use under this Agreement, and (d) for a valid Video Cloud license, the Video Cloud access application programming interfaces, and corresponding Documentation and Updates provided to Customer by VXG for use under this Agreement.  Valid licenses include evaluation licenses see Section 2.2 (Customer Evaluations), subject to the functional and term limits of the corresponding VXG Video Platform components being evaluated.  Evaluation licenses automatically convert to valid commercial licenses when VXG (or an authorized VXG distributor) issues Customer corresponding License Keys (or in the case of the Video Cloud, when VXG confirms that Customer’s account has been transferred to VXG’s commercial Video Cloud servers);

 

1.15.   Object Code” means software code in compiled or executable binary form;

 

1.16.   Order” means any order from Customer for Licensed Software or Services that has been accepted by VXG;

 

1.17.   Personal Information” means any information about an identified or identifiable individual protected under the privacy and/or data protection legislation applicable in the individual’s jurisdiction;

 

1.18.   Privacy Statement” means VXG’s Privacy Statement, as may be modified from time to time, available at www.videoexpertsgroup.com/legal/ or by email request at contact@videoexpertsgroup.com;

 

1.19.   Profile” means any End User and device profiles constructed from usage patterns and device-identifying technical data. It may include data from third party service providers;

 

1.20.   Services” means any Cloud Video platform service delivered by Cloud Components hosted on VXG’s (or its hosting provider’s) computers and accessed remotely, via the cloud, that VXG makes available to Customer for the Business Purpose;

 

1.21.   SLAmeans VXG’s Service Level Agreement, as may be modified from time to time, available at www.videoexpertsgroup.com/legal/ or by email request at contact@videoexpertsgroup.com;

 

1.22.   "Source Code" means human readable computer software code;

 

1.23.   Term” means: (a) for Licensed Software with a perpetual License Key, the period from the Effective Date until termination of this Agreement in accordance with the provisions of Article 11. (Term, Termination & Suspension) below, (b) for Licensed Software with a time-limited License Key, the period from the Effective Date until the end of the applicable subscription period indicated in the invoice issued to Customer for Orders for the corresponding Licensed Software, unless renewed in accordance with the provisions of Section 11.1. (Term & Term Renewal) below, (c) for Video Cloud License Keys, the period from the Effective Date until the corresponding Service usage limits have been reached, unless replenished in accordance with the provisions of Section 11.1 (Term & Term Renewal) below, (d) for Licensed Software or Service evaluations, the thirty (30) day period from the Effective Date, and (e) for all other aspects of this Agreement, the period from the Effective Date until termination of this Agreement in accordance with the provisions of Article 11. (Term, Termination & Suspension) below; and

 

1.24.   Update” means any bug fix, patch, work-around or update release for the Licensed Software made available by VXG to Customer for use under this Agreement.

 

Other capitalized terms defined in any part of this Agreement will have their indicated meaning throughout this Agreement. 

 

 

2.   LICENSES AND SERVICE ACCESS.

 

2.1.   Delivery.   VXG will: (a) make Licensed Software available for download, (b) deliver License Keys requested by Customer in Orders, and (c) deliver Services invoked through Customer’s Video Cloud account.  VXG reserves the right to suspend License Key deliveries, License Key activations or the availability of Services if Customer has failed to timely pay any amounts due under this Agreement after receiving notice of such late payment (email or posting notice at https://dashboard.videoexpertsgroup.com) will constitute adequate notice).

 

2.2.   Customer Evaluations.   Subject to the terms of this Agreement (including but not limited to Customer’s compliance with Article 3. (Restrictions, Acknowledgments and Customer Responsibilities) and VXG’s rights under Article 11 (Term, Termination & Suspension)), VXG hereby grants to Customer for each Licensed Software evaluation download (or for each delivery of an evaluation License Key in the case of Video Cloud evaluations) from VXG  a personal, non-exclusive, non-transferable and non-sublicensable right and license during the applicable Term under VXG’s intellectual property rights in the Licensed Software to do the following, in each case for the sole purpose of conducting an internal evaluation of the suitability of the Licensed Software and Services for the Business Purpose:

 

(a)           copy the Licensed Software as necessary to install it (in accordance with associated Documentation) on and to follow normal back-up and archiving practices for developers conducting Customer’s internal evaluation of the Device Components and/or Customer Components;

(b)           use, execute, display and perform the Licensed Software in accordance with associated Documentation, as necessary to evaluate the Device Components and/or Customer Components;

(c)           create Derivative Works (and, subject to the provisions of Article 7 (Confidential Information), copy, compile, link, use, execute, display and perform such Derivative Works) in accordance with associated Documentation, as necessary to evaluate trial implementations of the Device Components and/or Customer Components; and

(d)           access and use the Services in accordance with associated Documentation, as necessary to evaluate the Cloud Components and Services.

 

2.3.   Development.   Subject to the terms of this Agreement (including but not limited to Customer’s compliance with Article 5 (Fees), Article 3. (Restrictions, Acknowledgments and Customer Responsibilities), and VXG’s rights under Article 11 (Term, Termination & Suspension)), VXG hereby grants to Customer for each Licensed Software license purchased from VXG (or from one of its authorized distributors) a personal, non-exclusive, non-transferable and non-sublicensable (except as provided in Subsection (f) below) right and license during the applicable Term under VXG’s intellectual property rights in the Licensed Software to do the following, in each case for the sole purpose of developing a Licensed Software-based video streaming, recording and/or processing platform for the Business Purpose:

 

(a)           copy the Licensed Software as necessary to install it (in accordance with associated Documentation) on and to follow normal back-up and archiving practices for developers conducting the development, testing, maintenance or support of Device Components and/or Customer Components;

(b)           use, execute, display and perform the Licensed Software in accordance with associated Documentation, as necessary to develop, test, maintain and support Device Components and/or Customer Components;

(c)           create Derivative Works (and, subject to the provisions of Article 7 (Confidential Information), copy, compile, link, use, execute, display and perform such Derivative Works) in accordance with associated Documentation, as necessary to develop, test, maintain and support custom implementations of Device Components and/or Customer Components;

(d)           reproduce, abridge, condense and translate VXG-authored and non-confidential parts of Documentation, as necessary to create, distribute and update end user documentation for Device Components (“End User Documentation”);

(e)           access and use the Services in accordance with associated Documentation, as necessary to develop, test, maintain and support Video Cloud-based video streaming, recording and/or processing capabilities for Customer’s platform, if applicable; and

(f)            sublicense the rights and licenses granted in Subsections (a)-(e) above to Customer’s Affiliates and contractors, provided that Customer remains responsible for ensuring compliance with the terms of this Agreement by all such sublicensees, and for any breach of the terms of this Agreement by any such sublicensee.

 

2.4.   Deployment of Device Components and Customer Components.   Subject to the terms of this Agreement (including but not limited to Customer’s compliance with Article 5. (Fees), Article 3. (Restrictions, Acknowledgments and Customer Responsibilities), and VXG’s rights under Article 11 (Term, Termination & Suspension)), VXG hereby grants to Customer for each Licensed Software license purchased from VXG (or from one of its authorized distributors) a personal, non-exclusive, non-transferable and non-sublicensable right and license during the applicable Term under VXG’s intellectual property rights in the Licensed Software to do the following, in each case for the sole purpose of deploying a Licensed Software-based stand-alone mobile video playback and encoding application (and/or Licensed Software-based Customer-hosted video streaming, recording and/or processing platform) for the Business Purpose:

 

(a)           reproduce, sublicense under Customer’s EULA and distribute in executable binary form copies of Device Components (including but not limited to Derivative Works thereof) and End User Documentation in accordance with associated Documentation, as necessary to provide such components and documentation to Clients for their licensed use and/or to enable Clients to redistribute such components and documentation under Customer’s EULA to other End Users for their licensed use;

(b)           use on its (or its hosting providers’) computers, and authorize End Users to access, the Customer Components in accordance with associated Documentation, as necessary to provide Customer-hosted video streaming, recording and processing services to End Users of Device Components under Customer’s EULA; and

(c)           authorize third parties to redistribute Device Components pursuant to Subsection (a) above, provided that Customer remains responsible for ensuring compliance with the terms of this Agreement by all such distributors, and for any breach of the terms of this Agreement by any such distributor.

 

2.5.   Service Access.  Subject to the terms of this Agreement (including but not limited to Customer’s compliance with Article 5. (Fees), Article 3. (Restrictions, Acknowledgments and Customer Responsibilities), and VXG’s rights under Article 11 (Term, Termination & Suspension)), VXG hereby grants to Customer for each Video Cloud license purchased from VXG (or from one of its authorized distributors) a personal, non-exclusive, non-transferable and non-sublicensable right and license during the Term under VXG’s intellectual property rights in the Licensed Software to do the following, in each case for the sole purpose of deploying a Licensed Software- and Cloud Video-based video streaming, recording and/or processing platform for the Business Purpose:

 

(a)           reproduce, sublicense under Customer’s EULA and distribute in executable binary form copies of Device Components (including but not limited to Derivative Works thereof) and End User Documentation in accordance with associated Documentation, as necessary to provide such components and documentation to Clients for their licensed use and/or to enable Clients to redistribute such components and documentation under Customers EULA to other End Users for their licensed use in association with the Services;

(b)           use on its (or its hosting providers’) computers, and authorize End Users to access, the Customer Components in accordance with associated Documentation, as necessary to provide Video Cloud-based video streaming, recording and processing services to End Users of Device Components under Customer’s EULA; and

(c)           access and use the Services in accordance with associated Documentation as part of Customer’s delivery of a Licensed Software- and Video Cloud-based (but Customer branded) video streaming, recording and/or processing platform and service.

 

2.6.   Support.   VXG will provide, during VXG’s regular business hours, the number of free hours of technical support indicated in VXG’s invoice issued to Customer for Orders for the corresponding Licensed Software or Services.  Customer may purchase additional technical support hours, in advance, at the rates specified in VXG’s then-current VXG Video Platform pricing schedules at https://www.videoexpertsgroup.com/player-sdk/ or https://www.videoexpertsgroup.com/cloud-platform/.  VXG prioritizes fixes for Licensed Software crashes, provided Client describes exact steps how to reproduce the crash.  Other bugs, issues and requests reported by Client will be logged by VXG and will be considered when determining its internal Update development and release schedule.  VXG has no other obligation to provide any support, maintenance or engineering services to Customer, Clients or End Users under this Agreement.  Please contact VXG at contact@videoexpertsgroup.com for information on optional VXG support and engineering service offerings.

 

 

3.   RESTRICTIONS, ACKNOWLEDGEMENTS AND CUSTOMER RESPONSIBILITIES.

 

3.1.   Licensed Software and Cloud Component Restrictions.  Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any whole or partial copy of the Licensed Software itself.  Furthermore, Customer receives no rights in or to the Licensed Software, Cloud Components or Services other than those expressly granted in Sections 2.2 - 2.5. above.  Without limiting the generality of the foregoing, except as expressly authorized by this Agreement Customer will not: (a) modify, translate, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Licensed Software, Cloud Components or Services; (b) use the Licensed Software, Cloud Components or Services in any way forbidden by Section 3.7. (Acceptable Use and Restrictions) below; (c) reverse engineer the Licensed Software, Cloud Components or Services, or decompile, disassemble, or otherwise attempt to derive any of the Licensed Software’s or Cloud Components’ Source Code (except to the extent such prohibition is contrary to applicable law that cannot be excluded by the agreement of the Parties); or (d) attempt to circumvent or disable any watermark, time limit, other restriction or entitlement mechanism that is present or embedded in the Licensed Software, Cloud Components or Services.

 

3.2.   Third-Party Service Providers.   Customer consents to and will obtain all Client and End Users’ consents necessary for VXG’s use of third-party service providers, including but not limited to the hosting provider (who may further utilize subcontractors) in the provision of the Services.  Customer acknowledges and agrees that Customer Data and other data or information used by the Services may be transmitted to, processed by and/or reside on computers operated by the VXG authorized third parties (e.g., VXG’s hosting provider, who is currently Amazon Web Services) who perform services for VXG.  These third parties may use or disclose such Customer Data to perform the Services on VXG’s behalf or comply with legal obligations.  VXG has no responsibility for obtaining any consents or for any disclosures described in this Section 3.2.

 

3.3.   Changes to Cloud Components or Service.   VXG may add, reduce, eliminate or revise Cloud Component or Service features and functionality at any time.  Additionally, VXG may add, reduce, eliminate or revise services levels at any time where a third party service level agreement applicable to the Service has been changed.  Where any such change will cause a material detrimental impact on Customer, VXG will take commercially reasonable efforts to provide Customer sixty (60) days prior written notice (email or posting notice at https://dashboard.videoexpertsgroup.com will constitute adequate notice).

 

3.4.   Third Party Software.   Versions of certain third-party open source software may be delivered along with the Licensed Software or may be used to deliver the Services (“Ancillary Software”).  A separate agreement may apply to Customer’s use or distribution of Ancillary Software.  Customer acknowledges and agrees that it receives and will use and distribute Ancillary Software under the terms and conditions of the applicable open source software license(s), and that Ancillary Software does not form part of the Licensed Software for the purpose of this Agreement.  VXG identifies all Ancillary Software, and associated open source licenses, in applicable Licensed Software Documentation.

 

3.5.   Customer Product EULA.   Where Customer grants End Users access to and use of Device Components, Customer Components and/or Services, Customer will do so pursuant to a written agreement (“End User License”) which contains terms and conditions that: (a) only permit the use of such components and services in combination with Customer products or systems, (b) prohibit decompiling, reverse engineering or modification of such components and services (except as and only to the extent any foregoing restriction is prohibited by applicable law), (c) are at least as protective of such components and services, including but not limited to the intellectual property rights and Confidential Information of VXG and its licensors, as the terms and conditions of this Agreement, (d) flow through the acknowledgements and obligations pursuant to Section 3.10. (No Hazardous Environments) and (e) disclaim, to the extent permitted by law, any liability for damages of VXG (including but not limited to its Affiliates, licensors and suppliers) to End Users. Customer will not make any representations and/or warranties on behalf of VXG, whether express, implied, statutory, or otherwise, including but not limited to warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, or non-infringement.  Customer agrees to enforce VXG’ rights under Customers’ agreements with End Users, in the same manner and to the same extent as Customer enforces its own rights thereunder, or to allow VXG to do so by naming it as a third party beneficiary in such agreements. Customer agrees to cooperate with VXG to maintain VXG’s right, title and interest in and to the Licensed Software, Cloud Components and Services, and to use reasonable efforts to promptly provide VXG with notice of any related intellectual property infringement or claim that Customer becomes aware of.

 

3.6.   Clients and End Users.  VXG will have no obligation to provide any support or other services to Clients or End Users.  Customer will host, manage, maintain and support the Licensed Software on behalf of Clients and End Users in accordance with the Documentation.  Customer is responsible for:  (a) the configuration of the Licensed Software and Services to meet its own (and its Clients’ and End Users’) requirements;  (b) Customer Data and any other data uploaded to Customer’s (or its host providers’) servers or the Service by Customer, Clients and other End Users;  (c) Customer’s, Clients’ and other End Users’ use of Device Components, Customer Components and Services, including but not limited to unauthorized conduct and any conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and  (d) any use of the Services through Customer’s Video Cloud account, whether authorized or unauthorized. VXG will have no responsibility for the accuracy of data uploaded to the Services by Customer, Clients or End Users, including but not limited to Customer Data.  Customer will make no representations or warranties regarding the Licensed Software, Cloud Components or Services or any other matter, to End Users or any other third party, from or on behalf of VXG, and Customer will not create or purport to create any obligations or liabilities for VXG.  Customer will be jointly and severally liable to VXG for Customers’, Clients’ and End Users’ acts and omissions.

 

3.7.   Acceptable Use and Restrictions.   Customer will comply with the AUP.  In addition to the restrictions in Section 3.1 (Licensed Software and Cloud Component Restrictions), Customer will not:  (a) rent, sell, lease, distribute, pledge, assign or otherwise transfer, or encumber rights to the Licensed Software, Cloud Components or Services, or any part thereof, or use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Licensed Software, Cloud Components or Services, except by Clients and End Users as expressly authorized by this Agreement;  (b) provide Licensed Software or Service passwords or other log-in information to any third party, except to Clients and End Users as specifically authorized by this Agreement;  (c) share non-public Licensed Software, Cloud Component or Service features or content with any third party;  (d) use the Licensed Software or any Services in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Licensed Software, Cloud Components or Services, or to copy any ideas, features, functions or graphics of the Licensed Software, Cloud Components or Services;  (e) send or store infringing or unlawful material or viruses, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or programs;  (f) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Cloud Components or Services or the data contained therein; or  (g) use the Licensed Software or Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations.  If VXG suspects any breach of the requirements of this Section 3.7, including but not limited to by Clients or End Users, VXG may suspend Customer’s access to the Licensed Software and/or Services without any advanced notice, in addition to such other remedies as VXG may have.  Neither this Agreement nor the AUP requires that VXG take any action against Customer or any Client, End User or other third party for violating the AUP, this Section 3.7, or this Agreement, but VXG is free to take any such action it sees fit.

 

3.8.   Unauthorized Access.   Customer will take reasonable steps to prevent unauthorized access to the Services, including but not limited to by protecting its passwords and other log-in information.  Customer will notify VXG immediately of any known or suspected unauthorized use of the Services or breach of its security and will use best efforts to stop such breach or unauthorized use.

 

3.9.   Compliance with Laws.   Customer will comply with all applicable laws, rules and regulations and obtain all permits, licenses and authorizations or certificates that may be required in connection with its activities pursuant to this Agreement, including but not limited to laws governing the protection of Personal Information, other laws applicable to the protection of Customer Data and any import or export licenses required pursuant to Section 12.11 (Technology Export).

 

3.10.   No Hazardous Environments.   Customer acknowledges and agrees that none of the Licensed Software, the Cloud Components or the Services are sufficiently fault-tolerant for life-safety operations, and none of them are designed, manufactured, or intended for use in or in conjunction with control equipment in hazardous environments, including but not limited to the operation of nuclear facilities, aircraft navigation or critical communications systems, air traffic control, transportation control, or life support devices.  Customer will not use any of the Licensed Software, Cloud Components or Services for any purpose listed in this Section 3.10 and any attempt to do so will be at Customer’s own risk.

 

4.   CUSTOMER DATA & PRIVACY.

 

4.1. Use of Customer Data.   The Services require certain Customer Data in order to operate (e.g., user names, IP addresses, passwords and other login information).  Customer instructs VXG to process Customer Data in accordance with the terms and conditions of this Agreement and the Privacy Statement.  VXG will not access, collect, process, store, log or otherwise use Customer Data except as set out in its Privacy Statement or as necessary to:  (a) provide, optimize, troubleshoot and maintain the Service;  (b) generate Profiles and Service Data; or  (c) comply with applicable laws, rules or regulations or a binding order of a governmental body.  VXG will use commercially reasonable efforts to securely process and store Customer Data in accordance with industry standards.  Customer acknowledges that these efforts shall be adequate to protect Customer Data.

 

4.2. Service Regions.   Notwithstanding anything that may be stated to the contrary in VXG’s Privacy Statement, Customer will select the geographic region(s) (each a “Service Region”) where Customer Data will be stored when using the Services.  Customer acknowledges and consents to the storage of Customer Data in, and the transfer of Customer Data into, the Service Region(s) which the Customer selects.  Notwithstanding the foregoing, Customer acknowledges: (a) that VXG may send short message service (SMS) messages through the United States (and/or Canada) as part of the Service and (b) Customer’s billing information, if any, may be stored in the United States (and/or Canada).

 

4.3. Authorized Disclosure or Movement of Customer Data.   Notwithstanding anything that may be stated to the contrary in VXG’s Privacy Statement, unless VXG is prohibited from doing so, VXG will give Customer reasonable notice of any legal or governmental demand for disclosure or movement of Customer Data, or redirect any such demand to Customer to allow Customer to seek a protective order or otherwise to contest such required disclosure at Customer’s expense, prior to making any disclosure or movement.

 

4.4. Excluded Data.   Customer represents and warrants that Customer Data does not and will not include any Excluded Data.  In this Agreement “Excluded Data” means:  (a) social security numbers or their equivalent (e.g., social insurance numbers), driver license numbers, biometric data, health card numbers and other health-related information;  (b) other Personal Information that would be considered sensitive in nature including but not limited to of a "special category of data" under EU Directive 95/46; and  (c) data regulated under the Health Insurance Portability and Accountability Act or the Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards or similar laws or regulations in place now or in the future in the applicable jurisdiction (collectively, the "Excluded Data Laws").  CUSTOMER RECOGNIZES AND AGREES THAT: (i) VXG HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (ii) VXG’S SERVICE IS NOT INTENDED FOR THE MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

 

4.5. Profiles and Service Data.   VXG owns all right, title and interest in and to Profiles and Service Data and for greater certainty may use, reproduce, sell, publicize, or otherwise exploit Profiles and Service Data in any way, in its sole discretion. In this Agreement “Service Data” means any information and data relating to the access, use, and/or performance of the Services, including but not limited to data generated in connection with Customer, Client and other End Users’ use of the Services (e.g., analytics data, statistics data and performance data). For the avoidance of doubt, nothing in the Privacy Statement shall be construed or interpreted as limiting VXG’s ability to exploit Service Data and/or Profiles in any manner or requiring any further consent or authorization by Customer, or any Client or other End User for VXG’s use, reproduction, etc. of Service Data and/or Profiles.

 

4.6. Consents.   Customer represents and warrants that, before authorizing Clients or End User to use the Services and before providing Customer Data to VXG, Customer will have obtained the requisite consents and made all requisite disclosures to Clients and End Users, in accordance with all applicable laws, for the use of the Customer Data (in particular Personal Information), by VXG, its subcontractors and its hosting providers in accordance with this Agreement and VXG’s Privacy Statement.

 

5.   FEES.

 

5.1.   Unless otherwise stated in applicable VXG invoices issued to Customer for Orders, Customer shall pay VXG (or an authorized VXG distributor, as applicable) the fees specified in VXG’s then-current VXG Video Platform pricing schedules at https://www.videoexpertsgroup.com/player-sdk/ or  https://www.videoexpertsgroup.com/cloud-platform/ for all Licensed Software licenses requested in Orders and for all Services accessed through Customer’s Cloud Video account (including but not limited to where overages are permitted, any overage fees).  Unless otherwise stated in applicable VXG invoices issued to Customer for Orders, Customer will pay all amounts payable under this Agreement within thirty (30) days of the date of the invoice.  All amounts payable by Customer under this Agreement are non-refundable and will be paid without setoff or counterclaim and without any deduction or withholding.  There may be changes to license fees and charges for the Services (including but not limited to for any new features or functionality) which if applicable, will be effective following notice (email or posting notice at https://dashboard.videoexpertsgroup.com will constitute adequate notice) to Customer of any such change.  Customer is responsible for all taxes (other than taxes based on VXG’s net income), fees, duties, or other similar governmental charges.  VXG may elect to charge Customer interest for late fees at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law.  VXG reserves the right to suspend License Key deliveries, License Key activations or the availability of Services if Customer has failed to timely pay any amounts due under this Agreement after receiving notice of such late payment (email or posting notice at the https://dashboard.videoexpertsgroup.com will constitute adequate notice).

 

6.   IP & FEEDBACK.

 

6.1.   IP Rights.   VXG retains all right, title, and interest in and to the Licensed Software, the Cloud Components and the Services, including but not limited to all associated graphics, user interfaces, logos, trademarks and all related intellectual property rights.  Subject to any underlying rights in the Licensed Software, and subject to the provisions of Sections 6.2 (Independent Development) and  6.3 (Feedback) below, Customer retains all right, title and interest in and to any Derivative Works and applications that Customer develops (or has developed by third parties) pursuant to this Agreement. This Agreement does not grant Customer any intellectual property license or rights in or to the Licensed Software, Cloud Components, the Services, or any of their components, except to the limited extent that this Agreement expressly sets forth Customer such license rights.  Customer recognizes that the Licensed Software, Cloud Components and Services are protected by copyright and other laws.

 

6.2.   Independent Development.   Each Party acknowledges that the other Party and its Affiliates may, currently or in the future, make or use goods, services, or technologies that compete with its own; develop information internally or receive information from other parties that may be similar to its own Confidential Information; or evaluate, invest in, or do business with its competitors or potential competitors. Neither Party’s execution of this Agreement nor its receipt of any Confidential Information will restrict such activities, provided all confidentiality obligations and license restrictions of this Agreement are complied with.

 

6.3.   Feedback.   In this Agreement Feedback” means Customer’s, Clients’ and other End Users’ (and any of their respective employees’, agents’ or contractors’) suggestions, comments, or other feedback about the Licensed Software, Cloud Components, Services or other VXG products and services.  Even if designated as confidential, Feedback will not be subject to any confidentiality obligations binding VXG.  Customer hereby agrees that VXG will own right, title and interest in and to all Feedback, including but not limited to all associated intellectual property rights, and Customer hereby assigns to VXG all of Customer’s right, title, and interest thereto, including but not limited to all associated intellectual property rights.

 

7.   CONFIDENTIAL INFORMATION.

 

7.1.   Nondisclosure.   During the Term and for a period of five (5) years thereafter, Receiving Party will not use Confidential Information for any purpose other than as reasonably required in connection with the Licensed Software, Cloud Components, Services and/or this Agreement (the “Purpose”).  Receiving Party: (a) will not disclose Confidential Information to any employee, agent or contractor (including but not limited to any VXG service provider) of Receiving Party unless such person needs access in order to facilitate the Purpose and is bound by confidentiality obligations with Receiving Party that are no less restrictive than those of this Article 7 and Receiving Party remains responsible for its representatives’ compliance with the confidentiality obligations set forth in this Section 7.1; and (b) will not disclose Confidential Information to any other third party without the prior written consent of Disclosing Party. Without limiting the generality of the foregoing, Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care.  Receiving Party will promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to Receiving Party‘s attention.  Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority.  Receiving Party will give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise contest such required disclosure, at Disclosing Party’s expense.  For purposes of this Article 7, for VXG the terms Receiving Party and Disclosing Party are deemed to include VXG and its Affiliates.

 

7.2.   Exclusions.   Confidential Information does not include information that: (a) entered the public domain other than as a result of the act or omission of Receiving Party or a breach of this Agreement; (b) was in the public domain at the time of disclosure; (c) was received from a third party without a duty of confidentiality to the Disclosing Party; or (d) by written evidence, was known to or developed by the Receiving Party independent of and without access to, or reliance on the Disclosing Party’s Confidential Information.

 

7.3.   Injunction.   Receiving Party agrees that breach of this Article 7 may cause Disclosing Party irreparable harm, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Disclosing Party may seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

 

7.4.   Return.   Upon termination of this Agreement and Disclosing Party’s written request, Receiving Party will return all copies of Confidential Information to Disclosing Party or certify, in writing, the destruction thereof.

 

8.   REPRESENTATIONS & WARRANTIES.

 

8.1.   Limited Warranties.  VXG represents and warrants to Customer as follows:

 

(a)           For a period of ninety (90) days from the initial commencement of the applicable Term, the Licensed Software, Cloud Components and Services will materially perform in accordance with corresponding Documentation.  The sole remedy and VXG’s sole obligation for any breach of this warranty will be at VXG’s option to: (i) provide Customer with a free patch, work-around or update that corrects the problem, or (ii) terminate this Agreement and provide a refund of any Licensed Software license fees or Service fees paid by Customer under this Agreement (if any).  VXG will not be responsible for any failure of the Licensed Software, Cloud Components or Services resulting from Customer’s hosting, management, modification, configuration, maintenance or support of the Licensed Software (including but not limited to any Derivative Works), Cloud Components or Services; and

(b)           VXG will deliver Services in accordance with the SLA.  The sole remedy for any failure of the Services to meet the SLA are listed in the SLA.  Credits issued pursuant to the SLA will only be applied against the costs associated with Customer’s subsequent subscription renewal.  VXG is not required to issue refunds for or to make payments against such credits under any circumstances. VXG will have no responsibility or liability for any failure of the Service resulting from Customer’s hosting, management, maintenance or support of the Licensed Software.

 

8.2.   Warranty Disclaimers.   EXCEPT AS EXPRESSLY WARRANTED IN SECTION 8.1 ABOVE, CUSTOMER ACCEPTS THE LICENSED SOFTWARE, CLOUD COMPONENTS, SERVICES AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT “AS IS” AND AS AVAILABLE.  VXG AND ITS SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, CONDITIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, AND ANY IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  VXG MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES REGARDING ANY THIRD-PARTY SERVICE OR SOFTWARE WITH WHICH THE SERVICE MAY INTEROPERATE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) VXG DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE, CLOUD COMPONENTS OR THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (B) VXG DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE, CLOUD COMPONENTS, THE SERVICES OR ANY OTHER ELEMENTS OF THE VIDEO CLOUD PLATFORM ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

 

9.   INDEMNIFICATION.

 

9.1.   Indemnification by VXG.   VXG will defend Customer and Customer’s Indemnified Associates against any and all third party claims, demands, suits, or proceedings (each a “Claim”) brought against Customer or Customer’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns (each an “Indemnified Associate”) alleging that the Licensed Software or Services infringe any third party intellectual property right.  VXG will pay any damages finally awarded by a court of competent jurisdiction against Customer and Customer’s Indemnified Associates or settled by VXG which are attributable to such Claim.  VXG’s obligations set for in this Section 9.1 do not apply to the extent that the Claim arises from:  (a) a breach of the Agreement,  (b) the Licensed Software or Services being used in an manner not authorized by this Agreement, or being used in a manner or for a purpose other than that for which it was supplied, as contemplated by the corresponding Documentation,  (c) the Licensed Software or Service having been modified by or for Customer, Clients or other End Users;  (d) the implementation of features or functionality requested by Customer, Clients or other End Users, (e) the combination of the Licensed Software or Service with hardware, software or services not provided by VXG;  (f) the use of any version of the Licensed Software or Service other than the current, unaltered release or offering, if such Indemnified Claim would have been avoided by the use of a current unaltered release of the Licensed Software or offering of the Service; (g) any third-party service, software or other product on which the Licensed Software or Service relies (including but not limited to Ancillary Software and Amazon Web Services); or (h) compliance with any published and industry recognized standards or recommendations (including but not limited to standards or recommendations of or licensed by MPEG, AVC/H.264, HEVC/H.265, DivX, JPEG, ACC, Dolby, Via, Khronos). The foregoing states VXG’s entire liability and Customer’s exclusive remedy with respect to any infringement or misappropriation of any intellectual property rights of any kind.  This Section 9.1 and Section 9.2 (Mitigation by VXG) will not apply to any Licensed Software licensed or Services provided for no fee, including but not limited to any free trial or evaluation, and will be limited by the provisions of Article 10 (Limitation of Liability).

 

9.2.   Mitigation by VXG.   If:  (a) VXG is subject to (or is believes it may be come subject to) an actual or potential Claim, or  (b) Customer provides VXG with notice of an actual or potential Claim, VXG may, at its sole option:  (i) procure for Customer the right to continue to use the affected portion of the Licensed Software or Services;  (ii) modify or replace the affected portion of the Licensed Software or Services with functionally equivalent or superior software or services so that Customer’s use is non-infringing; or  (iii) if (i) or (ii) are not commercially reasonable, terminate the Customer’s license to affected Licensed Software or access to affected Services and refund to Customer any associated license fee for the affected Licensed Software on a pro-rata basis.

 

9.3.   Indemnification by Customer.   Customer will indemnify, defend and hold harmless VXG and its Indemnified Associates from and against any and all Claims arising out of or related to Customer’s breach of the Agreement, Customer Data, or Customer's alleged or actual use of, misuse of, or failure to use the Licensed Software or Services, including but not limited to:  (a) Claims by Clients or other End Users or by Customer's, Clients’ or End Users’ employees, agents or contractors;  (b) Claims related to unauthorized disclosure or exposure of Personal Information or other private information as well as Customer Data;  (c) Claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to Customers’ servers or to the Service through Customer’s Video Cloud account, including but not limited to by Customer Data; and  (d) Claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its employees, agents or contractors.  Notwithstanding the foregoing, Customer will have no obligation to indemnify, defend and hold harmless VXG and its Indemnified Associates from any Claim covered by Section 9.1 (Indemnification by VXG) above.

 

9.4.   Litigation.   The obligations of the indemnifying Party pursuant to this Article 9 include retention and payment of attorneys and payment of costs and expenses, as well as settlement at the indemnifying Party’s expense.  The indemnified Party or Indemnified Associate(s) must provide the indemnifying Party prompt notice of the Claim and agree to reasonably cooperate and provide assistance (at indemnifying Party’s expense) in the defense; provided that failure by the indemnified Party to provide prompt notice will relieve the indemnifying Party of its obligations only to the extent that the indemnifying Party was actually and materially prejudiced by such failure.  The indemnifying Party will control the defense of any Indemnified Claim, including but not limited to appeals, negotiations, and any settlement or compromise thereof; provided that the indemnified Party and Indemnified Associates will have the right to reject any settlement or compromise that requires that it or they admit wrongdoing or liability or that subjects it or them to any ongoing affirmative obligations.  VXG and/or VXG’s Indemnified Associates may participate in the defense of any Claim for which they are indemnified under this Article 9 at their own expense.

 

10.   LIMITATION OF LIABILITY.

 

10.1.   Exclusion.   EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL VXG BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR FOR COSTS OF REPROCUREMENT) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE, CLOUD COMPONENTS AND/OR SERVICES OR THIS AGREEMENT.

 

10.2.   Dollar Cap.   VXG’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND THE LICENSED SOFTWARE, CLOUD COMPONENTS AND/OR SERVICES PROVIDED FOR HEREUNDER, WILL NOT EXCEED THE FEES PAID TO VXG FOR THE LICENSED SOFTWARE OR SERVICES FROM WHICH THE LIABILITY AROSE IN THE TWELVE MONTHS PRIOR TO THE MONTH IN WHICH THE LIABILITY AROSE.

 

10.3.   Clarifications & Disclaimers.   THE LIABILITIES LIMITED BY ARTICLE 10 (LIMITATION OF LIABILITY) APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF VXG IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.  If applicable law limits the application of the provisions of Article 10 (Limitation of Liability), VXG’s liability will be limited to the maximum extent permissible.  For the avoidance of doubt, VXG’s liability limits and other rights set forth in this Article 10 apply likewise to VXG’s Affiliates, licensors, employees, directors, officers, agents, contractors, consultants and other representatives.

 

11.   TERM, TERMINATION & SUSPENSION.

 

11.1.   Term & Term Renewal.   This Agreement commences on the Effective Date. The term for any individual Licensed Software license is defined in the definition of “Term” in Section 1.23.  Customer can extend (or replenish) any time-limited Licensed Software Term (or usage-limited Service subscription) by issuing a corresponding Order for a consecutive time-limited (or replenished) License Key to VXG at least thirty (30) days prior to expiration of the then-current Term.

 

11.2.   Termination for Convenience.  Customer may terminate this Agreement for its convenience, for any reason or no reason, effective sixty (60) days after providing VXG written notice of its intent to terminate. After the fifth (5th) anniversary of the Effective Date VXG may terminate this Agreement for its convenience, for any reason or no reason, effective sixty (60) days after providing Customer written notice of its intent to terminate.

 

11.3.   Termination or Suspension for Cause.   Either Party may terminate this agreement by providing written notice if the other Party fails to comply with any material term of this Agreement and, in the event that such breach can be cured, fails to cure such breach within thirty (30) days after becoming aware of or receiving notice of such breach. VXG may suspend or terminate Customer’s (or any of its Clients’ or other End User’s) access to the Licensed Software or Services at any time, without advanced notice, if:  (a) VXG reasonably concludes that Customer or such Client or other End User has conducted itself in a way (i) that is not consistent with the requirements of the AUP, or (ii) in a way that subjects VXG to potential liability or interferes with the use of the Licensed Software or Services by other customers and users;  (b) VXG deems it reasonably necessary to do so to respond to any actual or potential security concerns, including but not limited to the security of other customers’ (or their users’) information or any information or data processed by the Licensed Software or Services; (c) VXG reasonably concludes that Customer, Clients and/or other End Users are violating applicable laws, rules or regulations, or (d) Customer has failed to timely pay any amounts due under this Agreement after receiving notice of such late payment (email or posting notice at the [* portal] will constitute adequate notice)..  VXG may also, without notice, suspend Customer’s (or any of Clients’ or other End Users’) access to the Licensed Software or Services for scheduled or emergency maintenance.  Termination of the Agreement will result in termination of all outstanding Customer Orders.

 

11.4.       Non-Assert.   During and after the Term, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against VXG or any of its Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any VXG Video Platform components or Services Customer has used or offered to Clients, End Users or others.

 

11.3.   Effects of Termination.   Upon expiration of a Term or termination of this Agreement, all corresponding Licensed Software licenses and associated Service access rights will immediately end, and where no other Orders are in place Customer will cease all use of the corresponding Licensed Software and delete, destroy, or return all copies of VXG’s corresponding Confidential Information and Licensed Software in its possession or control.  The following provisions will survive termination or expiration of any particular Licensed Software license or termination of this Agreement: Articles and Sections 3.1 (Licensed Software and Cloud Component Restrictions), 6 (IP & Feedback), 7 (Confidential Information), 8 (Representations & Warranties), 9 (Indemnification), 10 (Limitation of Liability) and 12 (Miscellaneous); and, any other provision of this Agreement that must survive to fulfill its essential purpose.  Termination is without prejudice to any right or remedy that may have accrued or be accruing to either Party prior to termination.  Termination will not relieve Customer from any obligation to pay VXG any and all fees or other amounts due under this Agreement.

 

12.   MISCELLANEOUS.

 

12.1.   Conflicts.   If there is any conflict among the main body of this Agreement and the attachments to this Agreement, or the policies and other documents incorporated herein by reference, this main body will prevail.

 

12.2.   Independent Contractors.   The Parties are independent contractors and will so represent themselves in all regards.  Neither Party is an agent of the other, and neither Party may make commitments on the other’ Party’s behalf.  The Parties agree that no VXG employee, agent or contractor is or will be considered an employee of Customer.

 

12.3.   Publicity.   Customer agrees to participate in VXG’s press announcements, case studies, trade shows, or other marketing reasonably requested by VXG.  During the Term and for thirty (30) days thereafter, Customer grants VXG the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on VXG’s website or other marketing or advertising materials.

 

12.4.   Notices.    All notices to VXG under this Agreement will be in writing and will be personally delivered or sent by courier or by certified or registered mail (return receipt requested) and will be deemed to have been duly given when received at 56 Temperance Street, Suite #700,

Toronto, Canada, M5H 3V5.  All notices to Customer under this Agreement will be provided electronically when expressly permitted in this Agreement, or by courier or certified or registered mail (return receipt requested) to Customer at the addresses on Customer’s last Order and will be deemed to have been duly given when sent or posted electronically (when permitted in this Agreement) or when received.

 

12.5.   Force Majeure.   No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.

 

12.6.   Assignment & Successors.   Customer may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without VXG’s express written consent.  An assignment will be deemed to include any merger of Customer with another party, whether or not Customer is the surviving entity, the acquisition of more than 50% of any class of Customer’s voting stock by another party, or the sale of more than 50% of Customer’s assets. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

 

12.7.   Severability.   To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect.  If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

 

12.8.   No Waiver.   Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver.  No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

 

12.9.   Choice of Law.   If Customer is located in the United States, this Agreement will be governed solely by the laws of the State of New York, United States, otherwise this Agreement will be governed solely by the laws of the Province of Ontario, Canada, in either case including but not limited to applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.

 

12.10.   U.S. Government.   The Services and Documentation are provided with Restricted Rights.  Use, duplication, or disclosure for or by the government of the United States, including but not limited to any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (a) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (b) in similar clauses in other federal regulations, including but not limited to the NASA FAR supplement and the DFAR’s.  The contractor or manufacturer is VXG. Customer shall not remove or deface any restricted rights notice or other legal notice displayed as part of the Services or appearing in the Licensed Software, Documentation or on any packaging or other media associated with the Licensed Software or Documentation.  Customer shall require that its government Clients and End Users of the agree to and acknowledge the provisions of this Section in writing.

 

12.11.   Technology Export.   Customer will comply in all respects with any and all applicable laws, rules and regulations and obtain all permits, licenses and authorizations or certificates that may be required in connection Customer’s use of the Licensed Software or Services.  Customer represents and warrants that:  (a) Customer is not located in, under the control of, or a national or resident of any country to which: the export of the Licensed Software, Documentation, Services or related information would be prohibited by the applicable laws, rules or regulations of the United States or Canada;  (b) Customer is not an individual to whom the export of the Licensed Software, Services or related information would be prohibited by the laws of the United States or Canada; and  (c) Customer has and will comply with applicable laws, rules and regulations of the United States and Canada (or other applicable jurisdiction) and of any state, province, or locality (or other applicable jurisdiction) governing exports of any product or service provided by or through VXG.  Customer will not use the Licensed Software or Services for any purposes prohibited by applicable laws, rules or regulations on exports, including but not limited to nuclear, chemical, or biological weapons proliferation.

 

12.12.   Entire Agreement.   This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter.  Neither Party has relied upon any such prior or contemporaneous communications.

 

12.13.   Amendment.   Subject to Section 3.3 (Changes to Cloud Components or Services), this Agreement and the Documentation, SLA and Privacy Statement may be amended by VXG from time to time by posting a new version and such new version will become effective on the date it is posted except that if VXG modifies the main body of this Agreement in a manner which significantly reduces Customer’s rights or increases Customer’s obligations and such changes are not required for VXG to comply with law, the changes to the main body of this Agreement will become effective sixty (60) days after VXG provides Customer written notice of changes (email or posting notice at the Service portal will constitute adequate notice).  If Customer objects in writing during that sixty (60) day period, the changes to the main body of this Agreement will become effective at the end of Customer’s current subscription.  Notwithstanding the foregoing provisions of this Section, amendment of the AUP, is governed by the AUP.

 

 

 

 

 

 

 

 

 

 

License and Terms of Service.Oct.25_2017