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Software License Agreement For On-Premise Software

  1. DEFINITIONS
    1. “Confidential Information” shall have the meaning ascribed thereto in the Mutual Non Disclousre Agreement signed between the Parties;
    2. “Concurrent Users” means the number of individual users logged onto a single Vidyo Software system at any one time;
    3. “Customer’s Existing System” means Customer’s computer equipment, associated software, peripherals and telephony equipment that coexists with the Software and custom development;
    4. “Delivery” means making Products available to Customer for electronic download or physical delivery to Customer;
    5. “Hardware” shall include but not be limited to servers, peripherals, telephony cards, operating system software and any related documentation;
    6. “Maintenance and Support Services” is the collective reference to software support services, system certifications and recertifications, Software updates and upgrades and other similar services provided under this Agreement;
    7. “Perpetual License” means a Software license which Partner has the right to use indefinitely;
    8. “POF” means the Product Order Form;
    9. “Privacy Policy” Vidyo privacy policy can be found at https://www.vidyo.com/privacy-policy.
    10. “Products” shall collectively refer to Software and Hardware purchased through Vidyo;
    11. “Software” shall mean the collective reference to Vidyo’s proprietary software and any third party proprietary software which Vidyo may resell to Customer whose end user license terms are not otherwise contained and are incorporated by reference as applicable. Software includes any product documentation and any upgrades, updates, new releases or other modification thereto made generally available by Vidyo in its discretion from time to time. Software shall not include custom development;
    12. “Software License” shall have the meaning ascribed thereto in Section 2.1;
    13. “Term License” means a time bound Software license which Partner has the right to use only during a specific duration.
  2. SOFTWARE LICENSE TERMS AND CONDITIONS
    1. Rights Granted to Customer: Subject to Customer’s compliance with the terms of this Agreement, Vidyo grants to Customer a non-exclusive, non-transferable, license on a “Perpetual or Term License” as defined in the relevant POF, to install, use and execute the Software in object code form on a per-license basis at the location specified on the POF as may be changed by Customer from time to time upon prior written notice to Vidyo, such Software License 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 Software obtained, not to exceed the number of licenses set forth on POF. The Customer’s right to use the software shall be contingent upon purchase of Maintenanace and Support Services by Customer. The Software License shall become effective upon Delivery of the Software and shall remain in force unless terminated pursuant to Section 12 of this Agreement.  This right does not include permission to grant sub-licenses or otherwise transfer such rights. The Customer may make one (1) copy of the Software for non-productive backup and archival purposes only, provided that it retains or affixes the equivalent of Vidyo’s proprietary legend and copyrights to the copy. Additionally, the Customer may make several copies of the system documentation, excluding training manuals and materials, provided that they are for internal use only. Customer may not reverse engineer, disassemble or otherwise translate the Software License provided pursuant to this Agreement. Vidyo, or any third party that owns the Software License, retains exclusive title to and all rights to the Software. The Customer acknowledges that the Software and documentation are the property of Vidyo and that the only right that the Customer obtains to the Software is the right of use in accordance with the terms of this Agreement. To assist Vidyo in the performance of its duties under this Agreement, to verify any license reporting requirements of Customer, and in the further protection of its proprietary rights, Vidyo reserves the right to electronically confirm that Software licenses are being used in conformance to these terms and in amounts purchased from Vidyo.
    2. Compliane with Law: All Software Licenses and documentation furnished pursuant to this Agreement are provided with RESTRICTED RIGHTS. Any use, duplication or disclosure by or for any governmental agency shall be subject to the restricted rights applicable to commercial computer software under all applicable legal provisions respective of restricted rights for commercial software. Consistent with the above, all Software and third party software license and commercial computer documentation are licensed to governmental end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this Agreement. The Customer may not use or export the Software, third party licensed software, or documentation except as authorized by law. In particular, but without limitation, the Software or Documentation may not be exported to any U.S. embargoed country.
    3. Software Title: No title to or ownership of the 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 Customer. Any reference to “sale” or “purchase” of the Software shall be deemed to mean, “License on the terms contained in this Agreement.” Vidyo considers the information contained in the Vidyo Software owned or created by Vidyo to be trade secrets of Vidyo and any third-party software licenses which Vidyo may resell to Customer to be trade secrets of such third-party licensor.  Customer agrees to treat Software as Confidential Information and shall use the same degree of care used by Customer to protect its own Confidential Information. Except as set forth herein, or as may be permitted in writing by Vidyo, Customer will not: (i) provide, transmit or otherwise make available, the Software or any part or copy thereof to any third party or (ii) reverse engineer, reverse compile or reverse assemble the Software in whole or in part.  Customer will not modify, adapt, translate or otherwise alter the Software. Notwithstanding the previous sentence, Customer may configure Software to meet Customer’s needs and user preferences.
    4. Third Party Software: Some third party software (including some imbedded software) are exclusively licensed pursuant to express end user license terms (“Third Party EULA”). To the extent applicable, Customer agrees to be bound by these end-user terms respective of the applicable Third Party EULA provisions. Third party software licenses provided to Customer which are not expressly provided for in the Third Party EULA provisions are provided to Customer pursuant to the terms of this agreement. All Third Party Products are restricted for use solely in conjunction with the particular Software intended by Licensor to be used therewith or with which Vidyo provides the Third Party Product, and may not be used with any other products, or on a stand alone basis.
  3. PAYMENT TERMS, CREDIT TERMS, CHANGE ORDERS & TAXES
    1. Payment Terms: All invoices are due Net 30 days from the invoice date. The prices and license fees for Products and Services ordered under this Agreement will be clearly marked on a POF. All remittals shall be made by electronic funds transfer to Vidyo’s bank with email notification of payment to be provided to Customer.

      Payments are due as follows:

      1. Products –100% invoiced upon Delivery including shipping and insurance costs.
      2. Maintenance and Support Services – Maintenance and Support Services fees is 100% invoiced along with product fees.
      3. Professionl Services – 50% invoiced upfront and rest on Time and material basis.
    2. Credit Terms: Customer agrees to pay Vidyo interest at a rate of one and one-half percent (1.5%) per month on the balance remaining unpaid, beyond the payment due date(s) set forth above.  Vidyo retains the right to engage third parties to collect on past due invoices, and any expenses associated with such collections will be paid by Customer.
    3. Taxes: Prices and license fees are exclusive of all sales, use, foreign export duties or any other similar taxes, however designated or levied against the sale, licensing, Delivery or use of the Products.  Customer will pay any such tax Vidyo may be required to collect or pay to Vidyo.  Tax-exempt certificates should be submitted at the time of the initial order and must be updated annually.   If a taxing jurisdiction determines certain items delivered to Customer under this Agreement to be taxable, Customer will reimburse Vidyo for those taxes.
    4. Expenses: Customer agrees to reimburse Vidyo for actual, reasonable travel and out-of pocket expenses including but not limited to shipping of software or hardware or any docuemntations or providing certifications to customer owned hardware, or third party integrations incurred in performing the Services.  All such additional amounts payable to Vidyo by Customer shall be due upon receipt of the invoice.
    5. Disputes: Disputes for invoiced items should be received in writing within ten (10) business days of Customer’s receipt of invoice. Payment for the total amount of invoice, excluding the item(s) in dispute, will be due pursuant to the invoice terms. Vidyo will use its reasonable efforts to respond to any disputed item within ten (10) business days of receipt of notice of the written dispute. Once the dispute is resolved, invoice shall be paid within ten (10) days.
    6. Currency: Payment for Products ordered under this Agreement,will be due and payable in United States or Canadian Dollars as noted in the POF within thirty (30) days from date of invoice.   Any currency exchange costs associated with receipt of U.S. Dollars by Vidyo as payment under this Agreement shall be borne fully by Customer so that Vidyo shall receive full payment as stated on the applicable POF.
    7. Maintenance and Support Services Renewal Fees: Vidyo will invoice Customer approximately sixty (60) days prior to each maintenance renewal term. Vidyo will not provide Maintenance and Support Services unless all monies due for the term have been paid. Vidyo reserves the right to adjust its fees charged for Maintenance and Support Services upon renewal. Maintenance and Support Services fees for additional orders will be billed on a pro-rata basis to bring the add-on order coterminous with the Customer’s maintenance renewal term.  No refunds or credits shall be provided to Customer for the cancellation or termination of Maintenance and Support Services.
    8. Payment Obligation: Vidyo’s obligation to deliver Software, and provide Support under this Agreement is subject
      to Customer’s adherence to all payment terms, as may be modified from time to time by mutual agreement or for a
      particular order. Vidyo may, without liability, and at any time following Customer’s failure to comply with these
      payment terms, disable licenses, delay or suspend Delivery of additional Software or performance of Services or Support,
      or require payment in full with the applicable order prior to Delivery. Failure by Customer to pay the Maintenance and
      Support fees will result in revocation of access to Vidyo Software, the access will only be resumed once Customer has
      paid and cleared any outstanding invoices.
  4. ORDERS, POF & ACCEPTANCE
    1. Orders: Each Customer order issued will be governed by this Agreement and will specify installation location, quantity and description of Products to be shipped. The order will be placed using a POF. Any POF signed by both parties will constitute a binding commitment by Customer to accept the Products, Maintenance and Support Services stated therein.
    2. Products: Acceptance of Product will be upon Delivery of licenses electronically. If Vidyo deems appropriate, Customer agrees to accept partial Product shipments.
    3. Services: A statement of work will accompany any order containing Services. The statement of work document will encompass the scope, price, and parameters of the application engagement.  Any terms and conditions contained in the statement of work will apply only to the related order and will take precedence over the terms and conditions in this Agreement.
  5. DELIVERY, TITLE, RISK OF LOSS, & SECURITY INTEREST
    1. Products: Making Products available to Customer for electronic download shall constitute Delivery. However, as necessary, Vidyo will ship Products to Customer by common carrier as soon as practical after receipt of a POF. Customer will reimburse any physical transportation charges paid by Vidyo.  Title and risk of loss for the Products will pass to Customer upon delivery by Vidyo to the common carrier. Vidyo will not be liable for any failure or delay in Delivery, or other performance, due to any causes beyond its reasonable control.
    2. Hardware: Vidyo retains a purchase money security interest in all Hardware purchased through Vidyo, and all additions, replacements and proceeds thereof, and all media on which the Vidyo Software is stored, to secure Customer’s payment obligation. Such security interest is retained until Customer’s payment obligations with respect to such pieces of Hardware and Software are satisfied in full. Vidyo may file this Agreement or financing statements pursuant to the Uniform Commercial Code or other applicable law to evidence or perfect Vidyo’s security interest. Customer agrees to execute any additional instruments Vidyo deems necessary to perfect any such security interest upon receipt of written request by Vidyo. Vidyo will be entitled to recover from Customer all of Vidyo’s reasonable costs and expenses (including court costs and reasonable attorneys’ fees) in enforcing its rights to payment or its security interest under this Agreement. Any one-time or on-going certifications required on customer hardware or customer 3rd party software will be at the customers expenses and will be invoiced 50% upon start of certification process and 50% when certification is completed.
  6. INSTALLATION
    1. Installation Services: Customer may purchase installation services from Vidyo for any Products ordered. As conditions to such installation, Customer 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.
    2. Customer Responsibility: Customer will assign a knowledgeable representative to act as project manager to provide information, answer questions and make decisions on behalf of Customer. Customer is responsible for the acquisition of all peripheral equipment such as NT1s, PCs and printers and is also responsible for the initial and recurring costs of network services. Customer is responsible for installation of any local area network, host computer and telephone system connectivity required to support the Installation.  Prior to Installation, Customer is 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, the failure of Customer to furnish the necessary information to Vidyo to fulfill this Agreement and/or a completed site preparation checklist or failures or substitutions of Customer’s Existing System.
    3. Delays: The completion and/or delivery by Vidyo of certain items set forth in the POF are predicated on the timely delivery and/or completion of a number of interim steps by other third party suppliers and/or contractors retained by Customer. Customer will use its best efforts to ensure that it will, and shall cause its third party suppliers and/or contractors to, adhere to the timelines set forth in the project plan.
  7. TRAINING
    1. The Customer may cancel or reschedule a training class registration by providing Vidyo with written notice at least ten (10) business days prior to the start of the class date. If Customer purchases any training classes and/or consulting services, Customer has up to six (6) months from the date of the POF to schedule and complete the Services. In the event Customer fails to do so due to no fault of Vidyo, all fees paid toward such classes shall not be refunded.  Customer shall be responsible for all expenses incurred by its employees in connection with this training, including course fees and potential travel expenses. Vidyo will provide the cost to Customer upon request.
  8. WARRANTY AND MAINTENANCE POLICIES
    1. Limited Software Warranty: Vidyo warrants, for a period of thirty (30) days from date of Delivery, that Vidyo 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.  In the event Customer purchases Product and Services on the same POF, Vidyo will defer the start of the Product warranty period to be coterminous with the Services warranty period.
    2. Limited Hardware Warranty:
      1. Vidyo warrants that Customer will acquire title to the Hardware being purchased hereunder free and clear of all
        liens and encumbrances except as set forth in Section 6.2. Vidyo further warrants that the Hardware delivered
        hereunder will be free from material defects in material and workmanship for a period of thirty (30) days from date of
        Delivery.
      2. Vidyo will honor this warranty on a return-to-factory basis at an authorized Vidyo warranty service area. Customer
        will be responsible for the costs of the replacement items if the defective items are not returned, complete and
        properly packaged, within ten (10) days from the date of Delivery of the replacement items.  Vidyo’s sole
        responsibility under this warranty will be, at Vidyo’s option, to repair or exchange any component that fails during
        the warranty period due to a material defect in workmanship and material.
    3. Disclaimer of Warranty: EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, PRODUCTS ARE PROVIDED BY VIDYO AND ACCEPTED BY THE CUSTOMER “AS IS” AND VIDYO GIVES TO THE CUSTOMER NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OR THE PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, VIDYO DOES NOT WARRANT THAT PRODUCTS OR THE OPERATION THEREOF IS OR WILL BE ERROR FREE OR UNINTERRUPTED OR MEETS OR WILL MEET THE CUSTOMER’S REQUIREMENTS, AND VIDYO GIVES NO IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE AND WHETHER ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

      VIDYO DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS TO THE ADEQUACY, SUFFICIENCY OR OTHER DATA IN COMPLYING WITH THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”), ANY DECISIONS, DIRECTIONS OR GUIDANCE GIVEN BY OFCOM OR ANY OTHER COMMUNICATIONS REGULATORY AUTHORITY, AS RELATED TO CELL PHONE NUMBERS OR IN ANY OTHER MANNER OR CAPACITY. THE CUSTOMER ACKNOWLEDGES THAT IT MAINTAINS EXCLUSIVE LIABILITY AS TO COMPLIANCE WITH AND SUBSEQUENTLY ANY FINES IMPOSED BY ANY REGULATORY AUTHORITY FOR BREACH OF TCPA, THE COMMUNICATIONS ACT 2003, THE DATA PROTECTION ACT 1998, THE ELECTRONIC COMMUNICATIONS ACT 1984 (EACH AS AMENDED) OR ANY OTHER RELEVANT LEGISLATION. IF CUSTOMER PURCHASES OUTBOUND DIALER SOFTWARE OR SERVICES, THE PARTIES ACKNOWLEDGE THAT CELL PHONE DATA CONSTANTLY CHANGES AND AS A RESULT IS LESS THAN 100% ERROR FREE. THE CUSTOMER AGREES THAT ANY CELL PHONE SCRUBBING IS PERFORMED ‘AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, COMPLETENESS, CORRECTNESS, PERFORMANCE, MERCHANTABILITY, CURRENTNESS, AND FITNESS FOR A PARTICULAR PURPOSE.

    4. Maintenance and Support Services:
      1. Customer is obligated to purchase Maintenance and Support Services in order to use the license(s). The Maintenance and Support Services program is detailed in Exhibit A. Upon purchase of Maintenance and Support Services, the right to receive Maintenance and Support Services shall begin upon the date(s) on which the Products are Delivered.
      2. Software releases will be delivered on a load and leave or electronically transferred basis.
      3. Software releases may contain new features and/or functionality, which license rights are not included in the price of the Maintenance and Support Services. Customer’s decision to enable optional, non-essential new features and/or functionality are billable to Customer along with any labor, travel and living expenses and other costs associated with each new feature and/or functionality Customer purchases as part of a Software upgrade. Such fees are to be mutually agreed upon prior to commencement of any work.  Customer is responsible for purchasing the required hardware and/or software if the release, new feature and/or functionality require upgrades in the existing Hardware and/or Software.
      4. Vidyo warrants that the Maintenance and Support Services will be performed in a professional manner, in accordance with reasonable commercial standards. Customer’s sole and exclusive remedy for a breach of this warranty will be Vidyo’s prompt performance of the Maintenance and Support Services in a manner that complies with this warranty without additional charge to Customer.
      5. Software Support, including diagnostic routines as well as support tools, test equipment and documentation which may be supplied by Vidyo for purposes of this Agreement are and shall, at all times, remain the exclusive property of Vidyo and shall be treated by Customer as Confidential Information.
      6. Customer shall make available, at Customer’s expense, VPN access at each site for online accessibility.
      7. There may be instances where Vidyo is called upon to troubleshoot and correct errors with components of Customer’s Existing System. These services are not covered under the warranty or Maintenance and Support Services.  In this event, Customer will be informed that the requested services are billable and Customer will be required to approve all billable work prior to commencement.
      8. Maintenance and Support Services apply to the two (2) most current Software releases and Vidyo assumes no responsibility for the use of superseded, outdated or uncorrected releases, save and except that Vidyo shall have no liability arising as a result of its inability to provide backward compatibility of Vidyo Software or Hardware due to any changes in Customer’s Existing System of which it was not aware prior to Delivery of the Software to Customer.
    5. Re-Certification for Support and Maintenance Services:
      1. Any installation or upgrade work on Vidyo products will be performed by Vidyo Certified Professionals and no re-certification for support and maintenance will be required.
      2. Vidyo shall require a re-certification of any Vidyo products for Support and Maintenance under the following conditions:
        1. Reinstating expired Support and Maintenance;
        2. Modifications were made to Vidyo products with an active maintenance agreement by the client and/or a third party service provider, but the client and/or third party service provider is not Vidyo Certified for the specific product;
        3. Vidyo products were installed, configured, updated, migrated, or moved, by a third party that is not Vidyo product certified.
      3. The Re-Certification process for Support and Maintenance on any Vidyo product requires the operational verification of all system functionality to be performed by an Vidyo Certified Professional, following functionality testing and technical assessment processes for the specific product.
      4. Any Re-Certification related work, performed by Vidyo Customer Support or Professional Services team, will be billable at the quoted hourly rate.
    6. Exclusions, Limitations, and Disclaimers:
      1. Vidyo’s support of the Products is dependent upon the following conditions being met in their entirety. Customer agrees to control and maintain the ambient environmental conditions in which the Products and associated peripheral equipment are installed at levels between 40 degrees Fahrenheit and 80 degrees Fahrenheit, with humidity not to exceed 80%, and the equipment shall not be exposed to moisture or corrosive gases or materials. Customer shall also provide a dedicated, separately grounded electrical outlet, or service connection and not to locate in close proximity, any equipment which may cause interference or damage to the Products.
      2. The warranties set forth in this Section 9 will not apply to defects to the extent attributable to: (i) use of equipment, software or interfacing not furnished by Vidyo; (ii) repair or modification of Products without Vidyo’s approval; (iii) accident, neglect, misuse or abuse; or (iv) exposure to conditions outside the range of the environmental, power and operating specifications provided by Vidyo. This Agreement does not cover, and Vidyo shall have no responsibility to correct failures, errors and problems with respect to Products that result from any relocation, accident, neglect, misuse, abuse, exposure to environmental conditions outside those specified herein or fire, flood, terrorist act or other act of God or failures caused by changes in the Customer’s Existing System.
      3. This Agreement does not cover custom developed applications or any custom development modified by the Customer or any unapproved third party. In the event Customer, or any third party, makes any modifications or alterations other than functions related to normal system administration to the custom development, further support of the affected custom development will be provided on a time and materials basis at Vidyo’s prevailing time and material rates plus travel expenses and other related costs.  Support will resume for the balance of the term if Vidyo is able to remedy the problem, stabilize the affected custom development, or return such software to its original condition. The Maintenance and Support Services term will not be extended and Customer shall not receive any credit or refund of any Maintenance and Support Services fees paid.
  9. LIMITATION OF LIABILITY
    1. EXCEPT FOR ANY MATTER FOR WHICH IT WOULD BE UNLAWFUL TO LIMIT, IN NO EVENT SHALL VIDYO BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE OR LOSS OR CORRUPTION OF DATA, ACCOUNT, PROFIT, BARGAIN, OR BUSINESS, INABILITY TO ACCESS VIDYO SERVICES, PERFORMANCE RELATED DELAYS, COMPUTER VIRUSES OR FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHER LEGAL THEORY. VIDYO’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO VIDYO IN THE SIX (6) MONTHS PERCEEDING THE CLAIM. VIDYO SHALL HAVE NO LIABILITY FOR ANY CUSTOM DEVELOPMENT.  NO ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION HEREUNDER MAY BE BROUGHT BY EITHER PARTY MORE THAN THREE (3) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, EXCEPT FOR AN ACTION FOR NON-PAYMENT. THE CUSTOMER AGREES THAT IT HAS READ AND UNDERSTOOD THIS SECTION.  IN CASE OF ANY CONFLICT BETWEEN THIS SECTION AND ANY OTHER SECTION OF THIS AGREEMENT, THE PROVISIONS OF THIS SECTION SHALL PREVAIL.  FOR THE AVOIDANCE OF ANY DOUBT, THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING THE TERMINATION, REPUDIATION OR EXPIRY OF THIS AGREEMENT.
  10. INFRINGEMENT INDEMNITY
    1. Subject to the limitations below, Vidyo will indemnify Customer against any judgment, including costs and direct damages, rendered by a court of competent jurisdiction, against Customer which definitively concludes that the Software infringes an existing patent, trademark, copyright or trade secret. Customer agrees to provide written notice to Vidyo of the initiation of any such suit or proceeding, provide full authority, information, and assistance for defense, and permit Vidyo to assume defense upon Vidyo’s request. Customer agrees that Vidyo shall be relieved of its obligations under this Section 11.1, unless Customer notifies Vidyo of such Claim within ten (10) days after Customer’s receipt thereof and gives Vidyo the authority to proceed as contemplated herein and, at Vidyo’s expense (except as provided below), gives Vidyo the relevant information then in its possession and reasonable assistance for Vidyo, in Vidyo’s discretion, to settle and/or defend any such Claim.
    2. If the Software becomes the subject of such an infringement Claim, or if it is determined by adjudication that the Software infringes same or if the sale or use of the Software is enjoined, then Vidyo may, at its option and expense either (a) procure for Customer the right to continue to use the Software; (b) replace the Software with other suitable and reasonably equivalent Software or parts thereof so that the Software becomes non-infringing; (c) suitably modify the Software so that the Software becomes non-infringing, or (d) if it is not commercially reasonable to take the actions specified in items (a), (b), or (c), terminate this Agreement and refund all associated license fees previously paid to Vidyo by Customer, subject to a three (3) year straight line depreciation.
    3. Vidyo shall not be liable for any compromise entered or settlement made by Customer without Vidyo’s prior written consent. In addition, Vidyo shall not be liable for any losses, costs, or damages, and Customer will indemnify, defend, and hold Vidyo harmless from any expenses, damages, costs, or losses resulting from any suit or proceeding based upon a claim arising from (1) compliance with Customer’s or End-User’s supplied designs, specifications, or instructions; (2) a modification of the Software by a party other than Vidyo; (3) the combination, operation, or use of the Software with any other product, data, or apparatus not provided by Vidyo; (4) the use of a superseded release of the Software if the infringement would have been avoided by the use of a current release of the Software provided or made available to Customer; (5) the use of such Vidyo Software to practice any method or process which does not occur wholly within the Vidyo Software; or (6) use of the Software in an manner otherwise as provided for in this Agreement. The license of any Software pursuant to this Agreement does not confer upon End User any license under any patent rights or copyrights.
  11. TERMINATION
    1. For Breach: The non-breaching party will have the right to terminate this Agreement and any POF or orders hereunder if the other party neglects or fails to perform or observe any of its obligations under this Agreement and such failure is not cured within thirty (30) days of receipt of written notice thereof or such failure is not able to be remedied.   Vidyo will have the right to terminate Customer’s license if Customer fails to pay any and all required license fees, attempts a transfer or assignment of a license of the Software except as expressly herein permitted, or otherwise materially breaches this Agreement.  Customer agrees, upon expiration of the license term or upon proper notice of such termination, to immediately return the Software and any portion and copy thereof in all forms, partial or complete, as directed by Vidyo and, if requested by Vidyo, to certify in writing by a duly authorized representative of the Customer as to the return of the Software and any copy thereof.
    2. Insolvency: Either party may terminate this Agreement or any POF, at any time, by written notice, in the event that the other files a voluntary petition in bankruptcy or under any similar insolvency law; makes an assignment for the benefit of creditors; has filed against it any involuntary petition in bankruptcy or under any similar insolvency law; or a receiver is appointed for, or a levy or attachment is made against, substantially all of its assets, if any such petition is not dismissed or such receiver or levy attachment is not discharged within sixty (60) days after the filing or appointment.
    3. Continuing Obligations: In the event of expiration or termination of this Agreement, the provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect until all obligations are satisfied.
  12. GENERAL
    1. The interests of Customer in this Agreement are personal and shall not be assigned, transferred, shared or divided in any manner by Customer without the prior written consent of Vidyo. Neither this Agreement nor any rights under it may be assigned by Customer without Vidyo’s prior written consent. Any merger, consolidation, or change of ownership or controlling voting interest (“Change of Control Event”) of Customer shall be deemed an assignment under this agreement. Vidyo will only consent to assignment if Customer has paid Vidyo all amounts due under this Agreement and the assignee agrees to be bound by the terms and conditions of this Agreement. Vidyo shall be entitled to assign this Agreement and the rights granted hereunder to any affiliate, subsidiary or successor in interest to Vidyo’s business.
    2. The laws of the State of Delaware, excluding its conflict of laws provisions, shall govern this Agreement. State and Federal Courts in Delaware shall have exclusive jurisdiction under this Agreement. In the event either party hereto institutes an action or other proceeding to enforce any rights arising under this Agreement, the party prevailing in such action or proceeding shall be paid all reasonable costs and attorney’s fees by the other party.
    3. During the term of this Agreement and for a period of one (1) year following its termination, each party agrees that it will not, without the written permission of the other party, directly or indirectly, solicit, hire or otherwise engage the services of any person who is an employee of or is otherwise being utilized as a consultant or contractor by the other party. The foregoing will not prohibit general solicitations for employment not specifically directed towards employees of the other party.
    4. If a court of competent jurisdiction holds any provision in this Agreement to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way, and a court of competent jurisdiction is authorized to modify the affected provision to preserve the parties’ intended benefits to the fullest extent permitted by law. Either party’s failure, at any time, to require the other party’s performance of any provision of this Agreement shall in no way affect that party’s right to enforce such provision, nor shall either party’s waiver of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
    5. Vidyo shall perform activities under this Agreement only as an independent contractor and nothing contained herein shall be construed to be inconsistent with this relationship or status. Under no circumstances shall any personnel of Vidyo be considered to be an employee or agent of Customer.  Nothing in this Agreement shall be interpreted as granting either Party the right or authority to make commitments of any kind for the other, implied or otherwise, without prior review and written agreement.  This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind.
    6. The agreement, exhibits, any attachments, or POF (collectively referred to as “documents”) contain the base terms that govern the relationship between the parties. Any discrepancies, conflict or errors between various provisions of the documents shall be resolved by giving precedence in the following order: (i) any signed amendment; (ii) the terms and conditions in this Agreement; (iii) Support and Maintenance Policy; (iv) Non Disclosure Agreement; (v) the applicable POF; and (vi) any other attachment.
    7. Force Majeure: Neither party shall be liable for any failure or delay (other than failure to make payment) caused by events beyond its control, including, without limitation, sabotage, failures or delays in transportation or communications, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, terrorist act, other actions or inactions of third-parties or technical failures. If Vidyo should fail to make any Delivery provided for herein 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 Customer shall be obligated to accept deferred Delivery, it being agreed that upon the occurrence of any such circumstance or event beyond Vidyo’s direct control, the time for Delivery by Vidyo shall be extended by the number of days of delay attributable to any such circumstance or event.
    8. Notice: Any notice, approval, request, authorization, direction or other communications under this Agreement will be given in writing to the parties at the address set forth in the beginning of this Agreement, shall reference this Agreement and will be deemed to have been received: (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the party to whom the same is directed; (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt or (iv) three (3) business days after the mailing date, if sent properly addressed, return receipt requested, postage and charges prepared by First Class U.S. mail or any other means of rapid mail delivery of which a receipt confirming the foreign is produced. Either party may change its address by notifying the other party in writing as provided herein.
    9. Exports: Customer understands that Vidyo is subject to regulations concerning the export of products promulgated by national governmental agencies of the various countries within which Suppier operates. Regardless of any disclosure Customer makes to Vidyo of an ultimate destination of any Products purchased or licensed hereunder, Customer warrants that it will not export in any manner, either directly or indirectly, any Software or other Product provided to Customer hereunder without first obtaining written authorization from Vidyo and all necessary approval from appropriate governmental agencies.
    10. This Agreement and any relevant POF contain and constitute the entire understanding and agreement between the parties in connection with and about the subject matter of this Agreement and supersede all earlier and other agreements and understandings between them and all earlier representations by any party about such subject matter. Any representations, warranties, statements and Maintenance and Supports which are not expressly set out in this Agreement or any relevant POF will not be of any effect. Each party warrants that there is no representation, warranty, promise, term, condition, obligation or statement upon which they have relied in entering into this Agreement or any relevant POF and which is not expressly set out in this Agreement or the relevant POF and no such representation, warranty, promise, obligation, statement or any other term or condition is to be implied in this Agreement or any relevant POF whether by virtue of any usage or course of dealing or otherwise except as expressly set out in this Agreement or any relevant POF. This section shall not exclude the liability of a party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind this Agreement