VXG PLATFORM LICENSE AND TERMS OF SERVICE
This VXG PLATFORM LICENSE AND TERMS OF SERVICE agreement (this " Agreement") contains the terms and conditions that govern access to and use of the VXG Platform (as defined below), and is an agreement between VXG Inc. ("VXG") and you or the entity you represent ("You"). You 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 and SLA (all as defined in Section 1 (Definitions) below),which 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) and, if you are entering into the Agreement for an entity (such as the company you work for), that you have legal authority to bind that entity.
VXG has developed and licenses the "VXG Platform" which is a collection of software components and documentation for building video management, recording, streaming and video processing solutions. Your VXG Platform entitlements will depend on the nature of service subscription or license You have purchased from VXG (e.g., cloud hosted or on premises; subscription or perpetual; number of authorized server licenses and corresponding input channels), and the VXG Platform extensions you require. This Agreement applies to all license types. Time limited on-line evaluation access to cloud hosted versions (or evaluation versions of on premises versions) of the VXG Platform is available free of charge.
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 "Application" means any value-added video management recording, streaming and/or video processing service, application or product that uses the VXG Platform;
1.3 "AUP" means VXG's acceptable use policy, as modified from time to time, available at www.videoexpertsgroup.com/legal/ or by email request at [email protected] ;
1.4 "Authorized Channels" means the number of video input channels authorized by VXG for the applicable Cloud-Hosted Service or On-Prem license you have purchased;
1.5 "Client" means the person to whom You extend Cloud-Hosted Services or On-Prem license rights as part of Your Application. For clarity, Clients may also be End Users, or may offer the capabilities of Your Application to their own independent End Users;
1.6 "Cloud-Hosted" means use of the of the VXG Platform as a service based on a cloud-hosted computing platform made available to You by VXG for use under the terms of this Agreement;
1.7 "Content" means any content supplied to VXG in connection with this agreement for hosting on the VXG Platform, including any literary, visual, audio or audiovisual works (including art, illustrations, graphics, images, music, sound effects, recordings, lyrics, narration, text, data, animation, characters, designs and all other audio, visual, audiovisual and textual content);
1.8 "Derivative Work" means any revision, modification, translation, expansion, extension, collection, condensation or abridgement of Software made for use in association with Your Application;
1.9 "Documentation" means any guides, manuals, developer documentation, release notes, instructions, policies and reference materials that VXG makes available to You for the VXG Platform, as such materials may be modified by VXG from time to time;
1.10 "End User" means the person who is the intended end user of the VXG Platform Server Software functionality, including any such end user of Your Application;
1.11 "Extensions" means optional components of Software that enhance or extend the capabilities of the VXG Platform, and includes the VXG Platform Mobile SDK;
1.13 "License Key" means a license key issued to You by VXG (by e-mail or through Your VXG dashboard after purchase) for the VXG Platform Server Software or Cloud-Hosted Service entitlements you have purchased, which may control the number of Your authorized Channels and applicable Term limits. Each On-Prem License Key is bound to a specific host hardware platform for the VXG Platform Server Software;
1.14 "Object Code" means software code in compiled or executable binary form;
1.15 "On-Prem" means use of the VXG Platform by hosting the VXG Platform server Software on Your own computing platform(s) (or, as provided in Section 2.3 (Distribution of VXG Platform Server Software), those of your customers);
1.16 "Personal Information" means any information about an identifiable individual;
1.17 "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 [email protected] ;
1.18 "Services" means: (i) Cloud-Hosted delivery of VXG Platform functionality ("Cloud-Hosted Services"), (ii) VXG Platform maintenance and technical support services ("Support Services"), and (iii) VXG Platform customization services ("Development Services");
1.19 "Service Limits" means:
(a) for Cloud-Hosted Service subscriptions, the data storage, bandwidth, processing and Authorized Channel limits associated with each VXG Platform subscription and Extension license You purchased, and
(b) for Support Services and Development Services, the number of man-hours associated with each such Service subscription You purchased;
1.20 "SLA" means VXG's Service Level Agreement for Cloud-Hosted Services, as modified from time to time, available at www.videoexpertsgroup.com/legal/ or by email request at [email protected] ;
1.21 "Software" means the computer software elements of the VXG Platform made available to You by VXG at dashboard.videoexpertsgroup.com or otherwise by VXG for use under the terms of this Agreement, including the VXG Platform server software ("VXG Platform Server Software") (provided in Object Code form), any Extensions (provided in Object Code and/or Source Code form) You elect to use, any Updates released during your subscription to Support Services (which are included with On-Prem Software license subscriptions), and any Support Service or Development Service deliverables;
1.22 "Source Code" means human readable computer software code;
1.23 "Term" means:
(a) for Cloud-Hosted Service or On-Prem license subscriptions, or for Support Service subscriptions for perpetual VXG Platform On-Prem Software licenses, the period from the Effective Date until the earlier of: (i) the end of the applicable subscription period indicated in the corresponding invoice issued to You by VXG, unless renewed in accordance with the provisions of Section 11.1 (Term & Renewal) below, or (ii) upon exhausting applicable Service Limits, unless replenished in accordance with the provisions of Section 11.1. For clarity, exhausting Your Service Limits for Support Services or Development Services will not end the Term of your Cloud-Hosted Service or On-Prem license subscription;
(b) for perpetual VXG Platform On-Prem Software licenses, the period from the Effective Date until termination of this Agreement in accordance with the provisions of Section 11 (Term, Termination & Suspension) below; and
(c) for VXG Platform evaluations, the thirty (30) day period from the Effective Date, unless extended or terminated earlier by VXG in its sole discretion ("Evaluation Term");
1.24 "Update" means any bug fix, patch, work-around or update release for the Software made available to You by VXG for use under the terms of this Agreement;
1.25 "Use" means:
(a) for On-Prem use of the VXG Platform, to download and copy the VXG Platform Server Software and corresponding Documentation as necessary to install it on Your computing platform(s) and to follow Your normal back-up practices, to create Derivative Works of Software that VXG makes available to You in Source Code form, and to use the Software in accordance with such Documentation to record and stream Content using Your Authorized Channels,
(b) for Cloud Hosted use of the VXG Platform, to download and copy the corresponding Documentation, and to use the Cloud-Hosted Services in accordance with such Documentation to record and stream Content using Your authorized Channels, and
(c) for both On-Prem and Cloud Hosted use of the VXG Platform, to download and copy licensed Extension Software and corresponding Documentation as necessary to install it on Your computing platform(s) and to follow Your normal back-up practices, to create Derivative Works of Extension Software that VXG makes available to You in Source Code form, and to use and sublicense the use of Extension Software in accordance with such Documentation to record and stream Content using Your Authorized Channels;
1.26 "VXG Platform" is defined in the recitals to this Agreement. It includes, for the applicable Cloud Hosted subscription(s) and/or On-Prem license(s), any Extensions and/or Updates for which you have paid all applicable Fees; and
1.27 Other capitalized terms defined in any part of this Agreement will have their indicated meaning throughout this Agreement.
2. SOFTWARE AND SERVICES.
2.1 Evaluations. If You have elected to evaluate a Cloud-Hosted (or On-Prem) version of the VXG Platform, then, subject to the terms of this Agreement, VXG hereby grants to You a non-exclusive, worldwide, non-transferable and non-sublicensable limited right (or license) during the Evaluation Term to Use the VXG Platform solely for the purpose of internally assessing the suitability of its capabilities and performance for use in association with Your intended Application. Evaluation versions of the VXG Platform may have performance limitations, such as a limited number of Authorized Channels, recording and play-back time limits, display watermarks and time limited License Keys.
2.2 Commercial Use.For each Cloud-Hosted Service subscription (or On-Prem license) you have purchased for hosting your Application, VXG hereby grants to You, subject to the terms of this Agreement (including payment of all applicable Fees), a non-exclusive, worldwide, non-transferable right (or license) during the applicable Term to: (a) Use one instance of the VXG Platform, and the number of Authorized Channels thereon, solely for the purpose of supporting Your Application; and (b) authorize Your Clients, and Your and their End Users, to Use that instance of the VXG Platform, pursuant to the terms of an ALA (as defined in Section 3.5 (Application License Agreement) below) and solely as required for them to use your Application. You may scale your Application and user base by purchasing additional Cloud-Hosted Service subscriptions (or On-Prem licenses) and/or additional Authorized Channels.
2.3 Distribution of VXG Platform Software.
(a) VXG Platform Server Software. For each On-Prem license you have purchased for distribution of your Application, VXG hereby grants to You, subject to the terms of this Agreement (including payment of all applicable Fees), a non-exclusive, worldwide, non-transferable right during the applicable Term to: (a) sublicense to a Client under the terms of Section 2.2 (Commercial Use) the Use of one instance of the VXG Platform Server Software, and the number of Authorized Channels thereon, solely for the purpose of supporting that Client's (and their End Users') use of Your Application. Your Clients may scale their implementation of your Application and their End User base by purchasing additional VXG Platform licenses, and/or Authorized Channels, through you.
(b) Extension Software. For each Extension license you have purchased for use in association with Cloud Hosted or On-Prem versions of the VXG Platform, VXG hereby grants to You, subject to the terms of this Agreement (including payment of all applicable Fees), a non-exclusive, royalty free, worldwide, non-transferable right during the applicable Term to: (a) sublicense to Clients and to Your or their end-users (directly or indirectly) the Use of the re-distributable elements of the Extension Software solely for the purpose of supporting Clients' (and Your and their End Users') use of Your Application.
2.4 Affiliates/Subcontractors/Clients. Subject to the terms of this Agreement, including payment of all applicable Fees, You may sublicense any of your rights under Section 2.2 (Commercial Use) to Your Affiliates, subcontractors and/or Clients, provided that You will always remain liable to VXG for any failure of your sublicensees to abide by the provisions of this Agreement (including the terms of the AUP in the case of Cloud-Hosted Services) as if such failure was Your act or omission.
2.5 Cloud-Hosted Service SLAs. VXG will deliver Cloud-Hosted Services during the applicable Term in accordance with the SLA. Your sole remedy for any failure of the Cloud-Hosted 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 Your subsequent subscription renewal(s). 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 Your hosting, management, maintenance or support of any On-Prem Software.
2.6 Support & Development Services.
(a) Support Services. VXG will provide, during VXG's regular business hours, the number of free hours of Support Services indicated in VXG's invoice issued to You for Your Cloud-Hosted Service subscription or On-Prem license. You may purchase additional Support Service hours, in advance, at the rates specified in VXG's then-current VXG Platform pricing schedules at www.videoexpertsgroup.com or dashboard.videoexpertsgroup.com . VXG prioritizes fixes for VXG Platform crashes, provided You provide accurate and complete instructions on how to reproduce the crash. Other bugs, issues and requests reported by You will be logged by VXG and will be considered when determining its internal Software development and release schedule. Unused Support Service credits expire at the end of each Cloud-Hosted Service subscription- or On-Prem license subscription-year or the end of Your Support Service subscription year, as applicable.
(b) Development Services. VXG will provide, during VXG's regular business hours, the number of hours of Development Services that You purchase in advance, which are available at the rates specified in VXG's then-current VXG Platform pricing schedules at www.videoexpertsgroup.com or dashboard.videoexpertsgroup.com . Upon written request VXG will provide You with its estimate of the total Development Service hours required to complete the requested deliverables and its estimated completion date.
(c) VXG has no other obligation to provide any support, maintenance or development services to You under this Agreement. Please contact VXG at [email protected] for information on optional VXG support and development service offerings.
3. RESTRICTIONS, ACKNOWLEDGEMENTS AND RESPONSIBILITIES.
3.1 Restrictions. All copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and You receive no title to or ownership of any whole or partial copy of the Software itself. Furthermore, You receive no rights in or to the Software, or to any Support Service or Development Service deliverables, other than those expressly granted in Sections 2.2 - 2.3 above. Without limiting the generality of the foregoing, except as expressly authorized by this Agreement You will not: (a) modify, translate, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software or the Cloud-Hosted Services; (b) use the Software or Cloud-Hosted Services in any way forbidden by Section 3.7 ( Acceptable Use and Restrictions) below; (c) reverse engineer the Software or Cloud-Hosted Services, or decompile, disassemble, or otherwise attempt to derive any of the Software's 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, Authorized Channel limitation, VXG Platform Server Software hardware registration, or other restriction or entitlement mechanism that is present or embedded in the Cloud-Hosted Services or Software.
3.2 Third-Party Service Providers. You consent to and will obtain all Client and End Users' consents necessary for VXG to use third-party service providers, including cloud hosting providers (who may further utilize subcontractors), in the provision of the Services. You acknowledge and agree that Content and any other data or information used in connection with the Services may be transmitted to, processed by and/or reside on computers operated by the VXG authorized third parties (e.g., VXG's cloud hosting provider, who is currently Amazon Web Services) who perform services for VXG. These third parties may use or disclose such Content 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 Software or Services. VXG may add, reduce, eliminate or revise Software or Service features or 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 You, VXG will take commercially reasonable efforts to provide You with sixty (60) days prior written notice (email or posting notice at dashboard.videoexpertsgroup.com will constitute adequate notice). VXG reserves the right to discontinue any Cloud-Hosted Service offering, or ongoing support for Software (including any subscription renewals), on six (6) months prior written notice (email or posting notice at dashboard.videoexpertsgroup.com will constitute adequate notice), provided that it notifies you in such notice of any available migration paths to alternate product or service offerings that provide comparable technical features, functionality and performance.
3.4 Third Party Software. Versions of certain third-party open source software may be delivered along with the Software or may be used to deliver the Cloud-Hosted Services ("Ancillary Software"). A separate agreement may apply to Your use or distribution of Ancillary Software. You acknowledge and agree that You receive, 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 Software for the purpose of this Agreement. VXG identifies all Ancillary Software, and associated open source licenses, at https://www.videoexpertsgroup.com/open-source/.
3.5 Application License Agreement. Where You grant Clients and/or End Users access to and rights to use any Software components or Cloud-Hosted Services for your Application, as permitted herein, You must do so pursuant to a written Application license agreement ("ALA") which contains terms and conditions that: (a) only permit the use of such components and services in association with Your Application, (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 the Software and Cloud-Hosted Services, including the associated intellectual property rights of VXG and its licensors, as the terms and conditions of this Agreement, (d) flow through the acknowledgements and obligations associated with AUP compliance and with Section 3.10 (No Hazardous Environments ), and (e) disclaim, to the extent permitted by law, any liability of VXG (including its Affiliates, licensors and suppliers) to Clients and End Users. You will not make any representations and/or warranties on behalf of VXG, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, title or non-infringement. You will enforce VXG' rights under Your ALA with Clients and End Users, in the same manner and to the same extent as You enforce Your own rights thereunder, or to allow VXG to do so by naming it as a third-party beneficiary in such agreements. You will cooperate with VXG to maintain VXG's right, title and interest in and to the Software and Cloud-Hosted Services and will use reasonable efforts to promptly provide VXG with notice of any related intellectual property infringement or claim that You become aware of.
3.6 Clients and End Users. VXG will have no obligation to provide any Support Services or Development Services directly to Clients or End Users. You will host, manage, maintain and support the Software and any Cloud-Hosted Services for Your Application that your offer to Clients and End Users in accordance with the Documentation. You are responsible for: (a) the configuration of the Software and Cloud-Hosted Services to meet Your own (and Your Clients' and Your and their End Users') requirements; (b) Content and any other data uploaded to Your (or Your host providers') servers or the Cloud-Hosted Service by You, your Clients and/or your or their End Users; (c) Your, Your Clients' and Your and their End Users' use of any Software or Cloud-Hosted Services, including unauthorized conduct and any conduct that would violate the AUP or the requirements of this Agreement that apply to You; and (d) any use of the Cloud-Hosted Services through Your account, whether authorized or unauthorized. VXG will have no responsibility for the accuracy of Content uploaded to the Cloud-Hosted Service. You will make no representations or warranties regarding the Software or Cloud-Hosted Services or any other matter pertaining to the features, functionality, performance, reliability or availability of the VXG Platform to any third party on behalf of VXG, and You will not create or purport to create any obligations or liabilities for VXG.
3.7 Acceptable Use and Restrictions . You must comply with the AUP. In addition to the restrictions in Section 3.1 (Restrictions), You will not: (a) rent, sell, lease, distribute, pledge, assign or otherwise transfer, or encumber rights to the Software or Cloud-Hosted 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 Software or Cloud-Hosted Services, except by Clients and End Users as expressly authorized by this Agreement; (b) provide Software or Cloud-Hosted Service passwords or other log-in information to any third party, except to Clients and End Users as required to use your Application as authorized by this Agreement; (c) share non-public Software or Cloud-Hosted Service features or content with any third party; (d) use the 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 Software or Cloud-Hosted Services, or to copy any ideas, features, functions or graphics of the Software or Cloud-Hosted Services; (e) send or store infringing or unlawful Content, material or viruses, worms, time bombs, Trojan horses or 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 Software or Cloud-Hosted Services or any Content contained therein; or (g) use the Software, Cloud-Hosted Services or Content 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 by Clients or End Users, VXG may suspend Your access to the 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 You 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. You will take reasonable steps to prevent unauthorized access to the Services, including by protecting Your passwords and other log-in information. You will notify VXG immediately of any known or suspected unauthorized use of the Services or breach of Your security and will use best efforts to stop such breach or unauthorized use.
3.9 Compliance with Laws. You 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 Your activities pursuant to this Agreement, including laws governing the protection of Personal Information, other laws applicable to the protection of Content, and any import or export licenses required pursuant to Section 12.11 (Technology Export).
3.10 No Hazardous Environments. You acknowledge and agree that none of the Software and Cloud-Hosted 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 the monitoring or operation of nuclear facilities, aircraft navigation or critical communications systems, air traffic control, transportation control, or life support devices. You will not use any of the Software or Services for any purpose listed in this Section 3.10 and any attempt to do so will be entirely at Your own risk.
4. CONTENT & PRIVACY.
4.1 Use of Content. The VXG Platform Server Software, Cloud-Hosted Services and other Service offerings require certain information in order to operate or for VXG to perform (e.g., usernames, IP addresses, passwords, server identification, and other login or registration information)("Registration Information"). You instruct VXG to access, collect, process store. Log and otherwise use Registration Information and Content 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 Registration Information or Content except as set out in its Privacy Statement or as necessary to: (a) provide, optimize, troubleshoot and maintain the Services; (b) generate Analytics (as defined in Section 4.5 (Analytics) below); or (c) comply with applicable laws, rules or regulations or an order of a governmental body. VXG will use commercially reasonable efforts to securely process and store Registration Information and Content in accordance with industry standards. You acknowledge and agree that these efforts will be adequate to protect Registration Information and Content.
4.2 Service Regions. Notwithstanding anything that may be stated to the contrary in the Privacy Statement, You may select the geographic region(s) (each a "Service Region") where Content will be stored when using the Services. You acknowledge and consent to the storage of Content in, and the transfer of Content into, the Service Region(s) which You select. Notwithstanding the foregoing, You acknowledge: (a) that VXG may send short message service (SMS) messages through the United States (and/or Canada) as part of the Service and (b) Your billing information, if any, may be stored in the United States (and/or Canada).
4.3 Authorized Disclosure or Movement of Content. Notwithstanding anything that may be stated to the contrary in the Privacy Statement, unless VXG is prohibited from doing so, VXG will give You reasonable notice of any legal or governmental demand for disclosure or movement of Content, or redirect any such demand to You to allow You to seek a protective order or otherwise to contest such required disclosure at Your expense, prior to making any disclosure or movement.
4.4 Excluded Data. You represent and warrants that Content 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 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"). YOU ACKNOWLEDGE AND AGREE 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 Analytics. VXG owns all right, title and interest in and to Analytics and for greater certainty may use, reproduce, sell, publicize, or otherwise exploit Analytics in any way, in its sole discretion. In this Agreement "Analytics" means: (i) End User and device profiles constructed from usage patterns and device-identifying technical data, and may include data from third party service providers, and (ii) any information and data relating to the access, use, and/or performance of the Services, including data generated in connection with Your, Your Clients', and/or Your or their 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 will be construed or interpreted as limiting VXG's ability to exploit Analytics in any manner or requiring any further consent or authorization by You, or Your Clients, or Your or their End Users for VXG's use, reproduction, etc. of Analytics.
4.6 Consents. You represents and warrants that, before authorizing Clients or End Users to use the Cloud-Hosted Services and before providing Content to VXG, You will have obtained all required consents and made all required disclosures to Clients and End Users, in accordance with all applicable laws, for the use of the Content (in particular Personal Information), by VXG, its subcontractors and its hosting providers in accordance with this Agreement and the Privacy Statement.
5. FEES.
5.1 You will pay to VXG the Fees invoiced by VXG for: (i) all Cloud-Hosted Service subscriptions (including overage fees), On-Prem Software licenses, Extension licenses, Support Services and/or Development Services You request, use and/or authorize others to use (including any overages, where applicable), and (ii) for any other usage-limited Service subscriptions or allowance requested, used and/or authorized (including any overages, where applicable), under this Agreement, which Fees will be priced in accordance with then-current VXG Platform pricing schedules atwww.videoexpertsgroup.com or dashboard.videoexpertsgroup.com for all, unless otherwise agreed by the Parties in writing. VXG reserves the right to change its VXG Platform Fees, including for the addition of any new features or functionality, which changes will take effect upon ninety (90) day's prior notice to You. You will pay all such invoiced amounts to VXG within thirty (30) days of the date of the invoice. All Fees are non-refundable, and all invoices must be paid without setoff or counterclaim and without any deduction or withholding. You are 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 You 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 also reserves the right to suspend License Key deliveries, License Key activations or the ongoing availability of Services if You fail to timely pay any amounts due under this Agreement after receiving notice of such late payment. In this Section 5.1, email or posting notice at the 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 Software, Support Service and Development Service deliverables, and Cloud-Hosted Services, including all associated software, graphics, application programming interfaces, user interface look and feel, logos, trademarks and all related intellectual property rights. Subject to any underlying rights in the Software, and subject to the provisions of Sections 6.2 (Independent Development) and 6.3 (Feedback) below, You retain all right, title and interest in and to any Derivative Works and applications You develop (or have developed by third parties) pursuant to this Agreement. This Agreement does not grant You any intellectual property license or rights in or to the Software, the Services, or any of their components, except to the extent expressly set forth in this Agreement. You recognize that the Software and Cloud-Hosted Services are protected by copyright and other laws.
6.2 Independent Development. Each Party acknowledges and agrees 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; or evaluate, invest in, or do business with its competitors or potential competitors. Neither Party's execution of this Agreement will restrict such activities, provided all license restrictions of this Agreement are complied with.
6.3 Feedback. In this Agreement "Feedback" means Your, Your Clients' and Your and their End Users' (and any of their respective employees', agents' or contractors') suggestions, comments, or other feedback about the Software, Cloud-Hosted Services or other VXG products or services. Even if designated as confidential, Feedback will not be subject to any confidentiality obligations that bind VXG. You hereby acknowledge and agree that VXG will own right, title and interest in and to all Feedback, including all associated intellectual property rights, and You hereby assign and agree to assign to VXG all of Your right, title, and interest thereto, including all associated intellectual property rights.
7. CONFIDENTIAL INFORMATION.
7.1 No Confidential Information. Each Party acknowledges that it will not disclose or provide access to any confidential information to the other Party pursuant to this Agreement. Cloud Hosted Content will not be considered confidential information.
8. WARRANTY DISCLAIMER.
8.1 THE SOFTWARE, SERVICES, AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE ALL PROVIDED "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 OR DEPEND UPON. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING VXG DOES NOT REPRESENT OR WARRANT: (A) THAT THE SOFTWARE OR THE SERVICES WILL PERFORM OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR; (B) THAT THE SOFTWARE, SERVICES OR ANY OTHER ELEMENTS OF THE VXG PLATFORM ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION; OR (C) THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE. You are solely responsible for determining the appropriateness of using and distributing the VXG Platform and, except as expressly provided in this Agreement, You assume all risks associated with Your, Your Clients', and Your and their End Users' exercise of service and license rights and entitlements under this Agreement, including but not limited to the risks and costs of errors, compliance with applicable laws, damage to or loss of Content, data, programs or equipment, and interruption of services.
9. INDEMNIFICATION.
9.1 Indemnification by VXG. VXG will defend You and Your Indemnified Associates against any and all third party claims, demands, suits, or proceedings (each a "Claim") brought against You or Your officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns (each an "Indemnified Associate") alleging that the Software or Cloud-Hosted Services infringe any third party intellectual property right. VXG will pay any damages finally awarded by a court of competent jurisdiction against You and Your Indemnified Associates or settled by VXG which are attributable to such Claims. 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 this Agreement, (b) the Software or Cloud-Hosted Services being used in a manner not authorized by this Agreement, or in a manner or for a purpose other than that for which it was supplied, as contemplated by the corresponding Documentation, (c) the Software or Cloud-Hosted Service having been modified by or for You, Your Clients or Your or their End Users; (d) the implementation of features or functionality requested by You, Your Clients or Your or their End Users, (e) the combination of the Software or Cloud-Hosted Service with hardware, software or services not provided by VXG; (f) the use of any version of the Software or Cloud-Hosted 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 Software or offering of the Cloud-Hosted Service; (g) any third-party service, software or other product on which the Software or Cloud-Hosted Service relies (including Ancillary Software and Amazon Web Services); or (h) compliance with any published and industry recognized standards or recommendations (including 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 Your 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 Software licensed or Cloud-Hosted Service provided for no fee, including any free trial or evaluation, and will be subject to the provisions of Section 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) You provide VXG with notice of an actual or potential Claim, VXG may, at its sole option: (i) procure for You the right to continue to use the affected portion of the Software or Cloud-Hosted Services; (ii) modify or replace the affected portion of the Software or Cloud-Hosted Services with functionally equivalent or superior software or services so that Your use is non-infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate Your license to affected Software or access to affected Cloud-Hosted Services and refund to You any associated license or subscription fee for the affected portion of the Software or Cloud-Hosted Service.
9.3 Indemnification by You. You will indemnify, defend and hold harmless VXG and its Indemnified Associates from and against any and all Claims arising out of or related to Your alleged or actual use of, misuse of or failure to use the Software, Cloud-Hosted Services or Content in accordance with the terms of this Agreement, including: (a) Claims by Your Clients, or Your or their End Users, or any of their employees, agents or contractors; (b) Claims related to unauthorized disclosure, exposure or use of Personal Information, other private information or Content; (c) Claims related to infringement or violation of copyright, trademark, trade secret, privacy or confidentiality rights , including by Content; 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 You or of any of Your employees, agents or contractors. You will have no obligation under this Section to the extent any Claim is covered by Section 9.1 (Indemnification by VXG).
9.4 Litigation. The obligations of the indemnifying Party pursuant to this Section 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 materially prejudiced by such failure. The indemnifying Party will control the defense of any Indemnified Claim, including 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 Section 9 at their own expense.
10. LIMITATION OF LIABILITY.
10.1 EXCEPT TO THE EXTENT SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT WILL VXG BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE VXG PLATFORM, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF VXG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
EXCEPT TO THE EXTENT SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT WILL ANY PARTY'S TOTAL LIABILITY FOR ANY AND ALL DAMAGES AND CLAIMS UNDER OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID TO VXG FOR THE SERVICES AND/OR SOFTWARE FROM WHICH THE CLAIM(S) AROSE IN THE TWELVE CONSECUTIVE MONTHS PRIOR TO THE MONTH IN WHICH THE EVENT GIVING RISE TO THE FIRST CLAIM OCCURRED.
Nothing in this Agreement will limit or exclude VXG's liability for death or personal injury caused by its negligence or for fraudulent misrepresentation or for any other liability which by law cannot be excluded.
11. TERM, TERMINATION & SUSPENSION.
11.1 Term & Renewal. This Agreement commences on the Effective Date. The term for any individual Software license is defined in the definition of "Term" in Section 1.23. You can extend (or replenish) any time-limited On-Prem Software license or Cloud-Hosted Service Term (or usage-limited Service subscription or allowance) by issuing a corresponding order for a consecutive time-limited subscription (or replenished subscription or allowance) to VXG at least thirty (30) days prior to expiration of the then-current Term.
11.2 Termination for Convenience. You may terminate this Agreement, in respect of some or all of your Cloud-Hosted Service subscriptions or On-Prem licenses, for Your convenience, for any reason or no reason, effective sixty (60) days after providing VXG written notice of Your intent to terminate, in which case no Fees will be refundable. 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 You 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 Your (or any of Your Clients', or Your or their End User's) access to the Software or Cloud-Hosted Services at any time, without advanced notice, if: (a) VXG reasonably concludes that You or such Client or End User has conducted itself in a way (i) that is inconsistent with the requirements of the AUP, or (ii) that subjects VXG to potential liability or interferes with the use of the Software or Cloud-Hosted Services by other customers or end users; (b) VXG deems it reasonably necessary to do so to respond to any actual or potential security concerns, including the security of other customers' (or their end users') information or any information or data processed by the Software or Cloud-Hosted Services; or (c) VXG reasonably concludes that You, Your Clients or Your or their End Users are violating applicable laws, rules or regulations. VXG may also, without notice, suspend Your (or Your Clients', or Your or their End Users') access to the Software or Cloud-Hosted Services for scheduled or emergency maintenance.
11.4 Effects of Termination. Upon expiration of a Term or termination of this Agreement, all corresponding On-Prem Software licenses and all Service access rights will immediately end, and You must cease all use of all corresponding Software and delete, destroy, or return (at VXG's direction) all copies of the Software in Your possession or control. The following provisions will survive termination or expiration of any particular Software license or termination of this Agreement: Sections 3.1 (Restrictions), 6 (IP & Feedback), 8 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 ( Term, Termination & Suspension) 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 You from any obligation to pay VXG any and all Fees or other amounts due under this Agreement.
12. MISCELLANEOUS.
12.1 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 Yours.
12.2 Publicity. You agree 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, You grant to VXG the right, free of charge, to use Your name and/or logo, worldwide, to identify You as such on VXG's website or other marketing or advertising materials.
12.3 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 You 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 You at the addresses on Your last Order and will be deemed to have been duly given when sent or posted electronically (when permitted in this Agreement) or when received.
12.4 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.
12.5 Assignment & Successors. You 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 You with another party, whether or not You are the surviving entity, the acquisition of more than 50% of any class of Your voting stock by another party, or the sale of more than 50% of Your 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.
12.6 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any term 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.
12.7 Interpretation. This Agreement is the Parties' entire agreement on this topic, superseding any prior or contemporaneous agreements. Failure to enforce any of provisions of this Agreement will not constitute a waiver. Unless otherwise expressly stated, when used in this Agreement "include," "includes," and "including" are not exclusive or limiting; "Section" refers to this Agreement's provisions; "days" refers to consecutive calendar days including Saturdays, Sundays and holidays; and "dollars" and the symbol "$" refer to United States dollars. Section headings in this Agreement are for ease of reference only.
12.8 Applicable Law and Place of Performance. This Agreement will be governed solely by the laws of the Province of Ontario, Canada, including applicable federal laws, 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. This Agreement will be deemed to be entered into and fully performed by VXG in the Province of Ontario.
12.9 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 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 the NASA FAR supplement and the DFAR's. The contractor or manufacturer is VXG. You will not remove or deface any restricted rights notice or other legal notice displayed as part of the Services or appearing in the Software, Documentation or on any packaging or other media associated with the Software or Documentation. You will require that Your government Clients and End Users of the agree to and acknowledge the provisions of this Section in writing.
12.10 Technology Export. You 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 Your use of the Software or Cloud-Hosted Services. You represents and warrants that: (a) You is not located in, under the control of, or a national or resident of any country to which: the export of the Software, Documentation, Services or related information would be prohibited by the applicable laws, rules or regulations of the United States or Canada; (b) You is not an individual to whom the export of the Software, Services or related information would be prohibited by the laws of the United States or Canada; and (c) You 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. You will not use the Software or Cloud-Hosted Services for any purposes prohibited by applicable laws, rules or regulations on exports, including nuclear, chemical, or biological weapons proliferation.
12.11 Amendment. Subject to Section 3.3 ( Changes to Software 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 Your rights or increases Your 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 ninety (90) days after VXG provides You written notice of changes (email or posting notice at dashboard.videoexpertsgroup.com will constitute adequate notice). If You object in writing during that ninety (90) day period, the changes to the main body of this Agreement will become effective at the end of Your then-current subscription. Notwithstanding the foregoing provisions of this Section, amendments of the AUP will be governed by the terms of the AUP.