Enterprise Terms

These Enterprise Terms (the “Agreement”) set forth the terms and conditions between the entity identified as the customer in the applicable Sales Order (“Customer,” “you” or “your”) and Buildscale, Inc., dba Vidyard (“Vidyard,” “we,” “our” or “us”) which govern Customer’s access to and use of the Services (as defined below). Vidyard and Customer may each be referred to as a “Party” and collectively as the “Parties”. This Agreement is effective as of the date the initial Sales Order (as defined below) referencing this Agreement is fully executed (“Effective Date”).

By executing a Sales Order, you: (i) agree to this Agreement on behalf of Customer; and (ii) represent and warrant that you have the authority to bind Customer to this Agreement.

1. Definitions

1.1. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, will have the following meanings:

(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

(b) “Applicable Laws” means all applicable local, state, provincial, national, and international laws, statutes, codes, rules, regulations, by-laws, and binding judgments, decrees, or orders of any competent governmental or regulatory authority, in each case, to the extent applicable to a Party in its performance of its obligations or exercise of its rights under this Agreement.

(c) “Content” means any and all content, data and materials including videos, audio, music, sounds, images, live streams, reports, files, text, images, logos, artwork, graphics, advertisements, works of authorship or any other materials or intellectual property contained therein.

(d) “Customer Content” means any Content you or any Users (as defined below) upload, generate, publish, or otherwise make available to, on or through the Services.

(e) “Documentation” means Vidyard’s guides, technical materials, and other knowledge base resources relating to the Services, made available by Vidyard to the Customer electronically at https://knowledge.vidyard.com/ or such other URL as Vidyard may designate from time to time.

(f) “Operational Uses” means any activity reasonably necessary to operate the Services for your benefit, including reproducing, storing, caching, encoding, or copying Customer Content; distributing or sharing Customer Content at your (or a Users’) direction; creating derivative and other works such as titles, thumbnails, previews, transcriptions, translations, captions, summaries, or reformatted or dubbed versions; displaying or performing Customer Content publicly through the Services; personalizing Customer Content for delivery; and sublicensing these activities to third parties in order to provide the Services.

(g) “Product Specific Terms” means the additional terms and conditions applicable to certain Services, or features or functions of the Services, as made available by Vidyard at www.vidyard.com/product-terms/ and incorporated herein by this reference.

(h) “Renewal Term” has the meaning given in Section 15.2 (Automatic Renewal).

(i) “Reseller” means an authorized third-party entity that has been permitted by Vidyard to resell subscriptions to Vidyard’s software-as-a-service application or platform, including add-on features and Software.

(j) “Sales Order” means the ordering document agreed to by the Parties that sets forth the specific Services purchased and any other commercial terms. Each Sales Order is governed by this Agreement.

(k) “Subscription Term” means the then-current term of a Sales Order.

(l) “Services” means Vidyard’s software-as-a-service application or platform, including any add-on features and Software, made available to Customer under this Agreement pursuant to and in accordance with a Sales Order.

(m) “Software” means the software products and code used in connection with the Services, including any embed code for Vidyard’s video player and any software components to track, capture or aggregate information about Viewers. The Software may include code licensed under third-party license agreements, including open-source licenses, made available or provided with the Software, as applicable.

(n) “User” means any employee, representative, consultant, contractor or agent of Customer or its Affiliates to whom Customer provides access to the Services pursuant to this Agreement and a Sales Order.

(o) “Viewer” means viewers that use or view Customer Content.

2. Access and use of services

2.1. VIDYARD ACCOUNT.  During the Subscription Term, you and Users may access and use the Services through an account provisioned by us (an “Account”). Each Account must designate at least one administrative User ("Admin User") who is responsible for: (a) configuring your Account settings; (b) managing Users and seat allocations in accordance with your Sales Order; and (c) serving as an authorized point of contact for Account-related matters. Vidyard will assign an Admin User upon provisioning your Account in accordance with the user details indicated by you in the Sales Order. You are responsible for: (i) all activities that occur in connection with your Account, including the activities, actions, and omissions of Users as if they were your own activities, actions or omissions; (ii) maintaining the confidentiality and security of your Account and User credentials; (iii) keeping your Account details, including contact and email information, accurate and current; and (iv) providing all necessary hardware, software, internet connections, and third-party services required for you and Users to access and use the Services. If you become aware of or suspect any unauthorized access to or use of your Account, you must notify us immediately in writing at security@vidyard.com.

2.2. PROVISION OF ACCESS. During the Subscription Term and subject to the terms and conditions of this Agreement (including the Documentation), Vidyard grants Customer and each User a limited, revocable, non-exclusive, non-transferable, and non-sublicensable:

(a) right to access and use the Services; and

(b) license to use the Documentation and the Software (in object code format on a compatible device), solely for the purpose of accessing and using the Services.

2.3. OWNERSHIP.  You acknowledge and agree that, notwithstanding anything to the contrary herein, the Services are provided on a subscription basis and the Software and Documentation are made available to you under a limited license, and neither is sold to you. All rights, title, and interest in and to the Services, Software, and Documentation (including all intellectual property rights therein), are and will remain the exclusive property of Vidyard and its licensors. Customer receives only the limited rights and licenses expressly granted under this Agreement, and no other rights or licenses are conveyed. The Software may include third-party or open-source components subject to separate license terms. To the extent required by such licenses and where indicated in the Software, those terms will apply to your use of the applicable components in place of this Agreement, and Vidyard makes no representations or warranties with respect to such components. Nothing in this Agreement grants you any right, title, or interest in or to the intellectual property of any third party providing such components, except as provided by those separate license terms. Vidyard reserves all rights not expressly granted under this Agreement.

2.4. CUSTOMER OBLIGATIONS AND LIMITATIONS.

(a) RESTRICTIONS.  You will not (and will not permit any User or third party to): (i) license, sell, transfer, distribute, share, rent, lease, reproduce or otherwise commercially exploit the Services, Software or Documentation; (ii) alter, create derivative works from, reverse engineer, decompile, or disassemble the Services, Software or Documentation; (iii) access or use the Services, Software or Documentation in order to develop a competing product or service; (iv) use the Services or Software to provide a service for others that is not contemplated by this Agreement or the Documentation; (v) remove or alter any copyright or other proprietary rights notice on or in the Services, Software or Documentation; (vi) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services, Software or other Vidyard systems, or attempt to circumvent any usage or feature limitations or restrictions; (vii) include, upload to, send, store or run viruses, malware or other harmful code, within or from the Services or Software or any Vidyard systems; (viii) intentionally damage or impair the Vidyard systems, Services or Software or any data within the Vidyard systems or Services, or attempt to overload or use the Vidyard systems, Services or Software in a way that could disable or impair their performance; (ix) use bots, scrapers or any similar tools (not provided by Vidyard) to access or extract data from the Vidyard systems, Services or Software; (x) access or use the Services, Software, or Documentation in any manner that violates Applicable Laws, or is fraudulent, abusive, harassing, misleading or deceptive; or  (xi) to the extent Customer uses the AI Services (as defined in the Product Specific Terms), use any Customer Content created or generated through the AI Services as part of a dataset that may be used for training, fine-tuning, developing, testing, or improving any machine learning or artificial intelligence technology.

(b) PROHIBITED CONTENT. You will not (and will ensure that Users do not) use the Services or Software to upload, create, generate, store, display, transmit, or otherwise make available Customer Content that: (i) is illegal, obscene, defamatory, pornographic, contains or depicts nudity, is sexually explicit or offensive, or includes links to adult websites; (ii) contains violence, or promotes or incites physical harm, hatred, racism, bigotry, or discrimination against any individual or group; (iii) is predatory, harassing, threatening, or intended to bully or intimidate any person; (iv) constitutes or promotes information that you or any User knows or should reasonably know is false, misleading, or deceptive; (v) constitutes, furthers, or promotes illegal or criminal activities, provides instructional information about such activities, or involves conduct that is abusive, threatening, obscene, defamatory, or libelous; (vi) violates or attempts to violate the privacy, publicity, copyright, trademark, contract, or other rights of any person or organization; (vii) includes or transmits any highly sensitive or regulated information such as Protected Health Information pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or equivalent laws, financial or payment card data subject to the Payment Card Industry Data Security Standard (PCI DSS), and non-public personal information governed by the Gramm-Leach-Bliley Act (GLBA); or (viii) otherwise violates this Agreement or any Applicable Laws.

(c) USAGE LIMITS. The Services may be subject to usage limits and technical restrictions established by Vidyard from time to time (“Usage Limits”). Usage Limits may include limits on the number of Users, videos, uploads, storage capacity, integrations, API calls, or other measurable parameters of the Services. Unless Usage Limits are specified in a Sales Order, Vidyard may modify or update the applicable Usage Limits from time to time to reflect product, technical, or business requirements.

(d) FAIR USE POLICY. With respect to any Services, features or functionality marketed, described or offered as "unlimited," "unrestricted," or similar terms, or where no Usage Limits are specified in a Sales Order or otherwise (together, the “Unlimited Services”), the following applies (the “Fair Use Policy”):

(i) Unlimited Services are subject to fair and reasonable use consistent with normal business operations. You agree to use (and to ensure that Users use) Unlimited Services in a manner that: (A) does not unreasonably burden our infrastructure or systems; and (B) does not interfere with other customers' use of the Vidyard systems or Services.

(ii) We will not unreasonably restrict legitimate business use of Unlimited Services, and you agree not to abuse Unlimited Service offerings.

(iii) If we determine, in our sole discretion, that your usage of the Unlimited Services violates this Fair Use Policy, we may: (A) provide you with written notice and a reasonable opportunity to reduce your usage; (B) temporarily throttle or limit your access to maintain service quality; (C) require you to upgrade to a higher service tier appropriate for your usage; or (D) suspend, restrict or terminate your Account or access to the Unlimited Services for repeated or egregious violations (provided we have first given you prior written notice of your violation of this Fair Use Policy).

(e) SERVICES EVALUATION. Customer is solely responsible for evaluating whether the Services are appropriate for its intended use and comply with any regulatory or legal obligations applicable to Customer’s business.

2.5. ADDITIONAL TERMS. If Customer subscribes to or uses any Services or features that are governed by the Product Specific Terms, the Product Specific Terms are incorporated into this Agreement by this reference and will apply to Customer’s use of those Services or features. Customer agrees to comply with (and ensure that all Users comply with) the Product Specific Terms. In the event of a conflict between this Agreement and the Product Specific Terms, the Product Specific Terms will control with respect to the relevant Services or features.

2.6. BETA SERVICES. From time to time, Vidyard may offer access to certain features, services or functionality identified as "beta," "pre-release" or any similar designation (collectively, "Beta Services"). The Beta Services are provided for the purpose of evaluation and feedback without any assurances of future availability or functionality. By opting to use the Beta Services, you acknowledge and agree that: (a) Beta Services may contain errors or inaccuracies and may not function as intended; (b) use of Beta Services is at your sole risk and discretion; (c) Vidyard is not obligated to provide support for the Beta Services; and (d) Vidyard has the right to modify, suspend, or discontinue the Beta Services at any time without notice. Notwithstanding anything to the contrary in this Agreement, including Section 10 (Warranties) and Section 12 (Limitations of Liability and Damages), the Beta Services are provided "as is" and “as available” without warranties of any kind. To the maximum extent permitted by Applicable Law, Vidyard will have no liability arising out of or relating to your, or a Users’, use of the Beta Services. Beta Services may be subject to additional terms and conditions made available to you at the time you opt-in to use them.

2.7. FEEDBACK. Vidyard welcomes any ideas, suggestions, or recommendations for improving or adding to the Services (“Feedback”). Any Feedback you provide is submitted voluntarily and without any obligation of confidentiality or expectation of compensation. By submitting Feedback, you waive any and all rights in such Feedback, including any moral rights (to the extent permitted by Applicable Law), and agree that Vidyard may use, modify, or incorporate the Feedback as it sees fit, without permission, notice, or payment to you. Nothing in this section requires Vidyard to use or act on any Feedback.

2.8. MODIFICATIONS. Vidyard may modify or update the Services, Software, or Documentation from time to time, including to improve functionality, enhance security, comply with Applicable Laws, or reflect changes in technology or business practices. Such modifications may include adjustments to features, user interfaces, or operational aspects of the Services and Software, provided that they do not materially reduce the overall functionality or security of the Services. Vidyard will make updated versions of the Documentation available electronically, and such updates will be deemed part of the Documentation for all purposes under this Agreement.

2.9. SUSPENSION RIGHTS.  Vidyard may, in its sole discretion, suspend or restrict Customer’s (or a User’s) access to the Services (in whole or in part) if: (a) Customer fails to pay Fees (as defined below) owed to Vidyard under this Agreement within ten (10) business days after the due date; or (b) Vidyard reasonably believes Customer or a User has violated Sections 2.4(a), 2.4(b), or 16.11 of this Agreement (a “Suspected Violation”). In connection with a Suspected Violation, Vidyard may: (i) investigate any Content within your Account associated with such Suspected Violation; (ii) report such Suspected Violation to appropriate authorities, including providing copies of relevant Content (as reasonably necessary); or (iii) pursue any other remedies available at law or in equity. Vidyard will give Customer the opportunity to remedy the Suspected Violation before taking any such measures, unless such Suspected Violation, in Vidyard’s reasonable discretion, is incapable of being remedied. Any suspension under this Section 2.9 will not relieve Customer of its payment obligations. Vidyard will have no liability to Customer or to any third party for any suspension of the Services pursuant to this Section 2.9 or any consequences arising from such suspension.

3. Fees and payment

3.1. FEES.  You agree to pay all fees specified in each Sales Order (“Fees”) in accordance with the payment terms stated in the applicable Sales Order. ALL FEES ARE NON-CANCELLABLE AND NON-REFUNDABLE, except: (a) as expressly set out in this Agreement; or (b) as required by Applicable Laws. Fees are based on subscriptions purchased and not actual usage. FOR THE AVOIDANCE OF DOUBT, YOU ARE NOT ENTITLED TO ANY REFUND OR CREDIT FOR CANCELLED SUBSCRIPTIONS OR UNUSED SERVICES.

3.2. TAXES.  All Fees are exclusive of taxes, levies or duties imposed by taxing authorities (collectively, “Taxes”), and you are responsible for payment of all such Taxes (other than taxes based on Vidyard’s income), even if not listed in your Sales Order. Unless otherwise stated in a Sales Order, all fees are payable in U.S. Dollars without any set-off or deduction.

3.3. RENEWAL PRICING. Unless otherwise stated in a Sales Order, Fees for each Renewal Term may increase by up to ten percent (10%) over the Fees payable for the Services during the immediately preceding Subscription Term.

3.4. DISCOUNTS. Any discounts applied in a Sales Order will not automatically carry over to a Renewal Term, and any increase in Fees pursuant to Section 3.3 (if applicable) will be applied to the non-discounted pricing for the Services in effect during the immediately preceding Subscription Term.

4. Reseller provisions

4.1. APPLICABILITY. This Section 4 applies solely where Customer subscribes to the Services through a Reseller. In such case, the provisions of this Section 4 will modify this Agreement only to the extent expressly set forth herein. If Customer subscribes to the Services directly with Vidyard, this Section 4 will not apply and will have no force or effect.

4.2. RESELLER SALES ORDER. The sales order, or other similar ordering document, issued by a Reseller and entered into between Customer and such Reseller (the “Reseller Sales Order”) will govern the commercial terms applicable to Customer’s subscription to the Services, including fees, payment terms, subscription term, any renewal provisions, and any contractual terms solely between Customer and Reseller. Notwithstanding the foregoing, Customer’s access to and use of, and Vidyard’s provision of, the Services remains governed solely by this Agreement. Except as modified by this Section 4, Customer remains subject to all terms and conditions of this Agreement, including all restrictions, obligations, and warranties. Vidyard will have no responsibility or liability arising from any acts or omissions of Reseller, including Reseller’s billing practices, payment collection, representations, or performance (or failure to perform) under any Reseller Sales Order.

4.3. PAYMENT OF FEES.  Customer will pay all fees for the Services to the applicable Reseller in accordance with a Reseller Sales Order. Section 3 (Fees and Payment) will not apply to subscriptions to the Services purchased through a Reseller. In addition to any other suspension rights under this Agreement, Vidyard may suspend Customer’s access to and use of the Services if Customer fails to make any payment for the Services when due in accordance with the terms of the applicable Reseller Sales Order. Except as expressly set forth in this Agreement or required by Applicable Laws, ALL FEES PAID TO RESELLER FOR THE SERVICES ARE NON-CANCELLABLE AND NON-REFUNDABLE and are based on subscriptions purchased and not actual usage. FOR THE AVOIDANCE OF DOUBT, CUSTOMER IS NOT ENTITLED TO ANY REFUND OR CREDIT FOR CANCELLED SUBSCRIPTIONS OR UNUSED SERVICES.

4.4. DATA SHARING WITH RESELLER. In addition to the rights set forth in Section 7 (Usage Data), Vidyard may share Usage Data and other information regarding Customer with the applicable Reseller in connection with Customer’s subscription to the Services.

4.5. INTERPRETATION OF THIS AGREEMENT. Certain Sections and defined terms of this Agreement will be interpreted as follows:

(a) For the purposes of Section 12.2 (Limitations of Liability), references to “Fees” will mean the fees paid or payable by Customer to Reseller for the Services, as set forth in the applicable Reseller Sales Order.

(b) References to “Sales Order” in the applicable parts of this Agreement will mean the applicable Reseller Sales Order.

(c) Any references to the duration of a subscription to the Services will be as set forth in an applicable Reseller Sales Order. For clarity, any renewal of Customer's subscription to the Services through a Reseller will be governed by the terms set forth in the applicable Reseller Sales Order, and Section 15.2 (Automatic Renewal) will not apply except to the extent expressly incorporated into or referenced by the Reseller Sales Order.

5. Customer content and license

5.1. CUSTOMER CONTENT.  You are responsible for all Customer Content under your Account, including Customer Content submitted, created, generated, or published by any Users. Vidyard may, but is under no obligation to, monitor, review or analyze Customer Content to assess compliance with this Agreement. Vidyard is not responsible for the accuracy, quality, or legality of any Customer Content, or for preventing or identifying intellectual property infringement or other violations of Applicable Laws.

5.2. RIGHTS AND CONSENTS.  You are responsible for obtaining all necessary consents, licenses and waivers required to create, generate, record, submit, publish and use Customer Content as contemplated under this Agreement. These include, but are not limited to, consents, licenses and waivers from: (a) copyright owners, artists, actors, directors, performers, writers, producers or any other individuals appearing in Customer Content; (b) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI or SESAC); and (c) owners of musical compositions and sound recordings embodied in the Customer Content. You are also responsible for paying all applicable royalties, fees and other amounts owing to any person or entity in connection with the use of any Customer Content, including payments to labor unions, guilds and public performance rights collection organizations.

5.3. OWNERSHIP AND LICENSE.  As between Customer and Vidyard, Customer retains all ownership rights in Customer Content. You hereby grant Vidyard a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable and non-transferable (other than as permitted by this Agreement) license to use Customer Content to provide the Services to you and any User. This license includes all Operational Uses necessary to deliver, display, distribute, personalize, and manage Customer Content through the Services, including the rights necessary for each Viewer to view the Customer Content.

5.4. CONTENT RETENTION, PRESERVATION AND DISCLOSURE.  We may retain (but not display, distribute, or publish) server copies of Customer Content that you (or a User) have deleted from the Services in accordance with the Documentation. We may also preserve, store or disclose Customer Content if required to do so by Applicable Law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal processes; (b) enforce or comply with this Agreement; (c) respond to claims that any Customer Content violates the rights of any person or entity; or (d) protect the rights, property, or personal safety of Vidyard, Viewers or the public.

5.5. BACKUP AND DATA LOSS. Customer acknowledges and agrees that: (a) it is solely responsible for creating and maintaining backup copies of all Customer Content stored in or transmitted through the Services; (b) Vidyard has no obligation to back up Customer Content or to provide access to Customer Content except as expressly provided in this Agreement; and (c) to the maximum extent permitted by Applicable Law, Vidyard will have no liability for any loss, corruption, deletion, damage, or inaccessibility of Customer Content, except as expressly provided in this Agreement.

6. Viewer data

6.1. VIEWER DATA.  You may choose to collect data from Viewers, including the identity and location of a Viewer, the number of times a specific Viewer has viewed any part of the Customer Content, and any other information you request from a Viewer through a collection mechanism made available in the Services (collectively, “Viewer Data”). Viewer Data is owned by Customer and all rights not granted to Vidyard hereunder will remain with you. You hereby grant to us a limited, royalty free, sublicensable, non-exclusive, non-transferable (other than as permitted by this Agreement), worldwide right and license to: (a) process and analyze Viewer Data for the purposes of providing the Services; (b) generate statistics and produce reports for you based on or derived from Viewer Data; and (c) anonymize Viewer Data (in accordance with Applicable Laws) and use such anonymized data to improve and customize the Services. Except as set out in this Agreement or as required by Applicable Law, Vidyard will not disclose your Viewer Data to any third parties outside of your Account without your consent or instructions. To the extent you configure any third-party integrations to connect to the Services, you hereby provide your consent to disclose Viewer Data to such third parties.

6.2. LAWFUL BASIS. You acknowledge, represent, and warrant that you have obtained and will maintain all rights, authorizations, and consents necessary to collect, use, process, transfer and disclose Viewer Data to Vidyard. You further represent and warrant that your collection and use of Viewer Data is based on a lawful basis (as defined by Applicable Law) and in full compliance with all Applicable Law (collectively “Privacy Consents”). You acknowledge that Vidyard relies entirely on you to obtain all necessary Privacy Consents from, and provide all required notices and disclosures to, Viewers as required by Applicable Law. While Vidyard may make available certain features or functionality within the Services to assist you in meeting your privacy or compliance obligations, you are solely responsible for: (a) determining whether and how to use such features; (b) configuring them appropriately; and (c) ensuring that your use of such features satisfies your legal and regulatory requirements under Applicable Law.

7. Usage data

7.1. The Services collect and analyze certain data about Customer and Users with respect to their use of the Services and Software (“Usage Data”). All Usage Data and any derivatives thereof are owned by us. By accessing and using the Services, you acknowledge and agree to the following: (a) we are permitted to collect Usage Data; (b) we may use Usage Data for any purpose in our sole discretion both during and after the term of this Agreement; (c) to the extent that any Usage Data is subject to applicable privacy and data protection laws, we will process such data in accordance with such laws and our Privacy Policy; and (d) if we publicly disclose any Usage Data, it will be in anonymized and aggregated format, will not identify Customer or any Users, and will not include any Customer Content.

8. Subcontractors

8.1. We may use third party subcontractors in connection with the operation of the Services (“Subcontractors”). You consent to our use of Subcontractors, provided that Vidyard will ensure such Subcontractors are subject to obligations substantially similar to those applicable to Vidyard in this Agreement. Vidyard will remain liable to you for any breach of this Agreement by a Subcontractor, subject to the limitations, conditions and exclusions set out in this Agreement.

9. Third party services

9.1. You and any Users may choose to integrate, connect, or otherwise use the Services with other services not provided by Vidyard (“Non-Vidyard Services”), and in doing so you grant Vidyard permission to interoperate with the Non-Vidyard Services and transfer Customer Content and Viewer Data to and from the Non-Vidyard Services as instructed by you or any Users or in accordance with your configuration of the Non-Vidyard Services. If you use Non-Vidyard Services: (a) you warrant that your use of such Non-Vidyard Services in conjunction with the Services will comply with the third-party terms applicable to your use of the Non-Vidyard Services; (b) you agree that Vidyard does not warrant or support Non-Vidyard Services; (c) as between Vidyard and you, you assume all responsibility for the Non-Vidyard Services and any disclosure, modification or deletion of Customer Content and Viewer Data by the Non-Vidyard Services; and (d) Vidyard will have no liability, and you are not relieved of any obligations under this Agreement or entitled to any refund, credit, or other compensation, due to any unavailability of, or change in, the Non-Vidyard Services or any change in Vidyard’s ability to interoperate with the Non-Vidyard Services.

10. Warranties

10.1. VIDYARD WARRANTY.

(a) Limited Warranty. Vidyard warrants to Customer that, during the Subscription Term: (i) Vidyard will implement and maintain commercially reasonable security measures, including anti-malware protections, designed to detect and prevent the introduction of viruses, malware, or other malicious code into the Services; and (ii) the Services will perform in all material respects in accordance with the applicable Documentation (the “Limited Warranty”). The Limited Warranty does not apply to any non-conformity caused by: (A) your (or any Users’) misuse of the Services or Software; (B) your (or any Users’) unauthorized modification of the Services or Software; or (C) any third-party products, software, services (including any Non-Vidyard Services), or equipment not provided by Vidyard.

(b) Exclusive Remedy. Customer’s exclusive remedy for any breach of the Limited Warranty is as follows: (i) upon receipt of Customer’s written notice describing the alleged non-conformity in reasonable detail, Vidyard will investigate the claim and, if Vidyard determines that the Services do not conform to the Limited Warranty, will use commercially reasonable efforts to correct the non-conformity or provide a reasonable workaround within forty-five (45) days; and (ii) if Vidyard is unable to resolve the non-conformity within such period, or if doing so is not commercially reasonable, either Party may terminate the affected Services, and Vidyard will refund any prepaid Fees covering the unused portion of the applicable Subscription Term for the terminated Services. This Section 10.1 sets forth Customer’s exclusive rights and remedies, and Vidyard’s sole liability, for any breach of the Limited Warranty.

10.2. DISCLAIMER OF OTHER WARRANTIES.  Except for the Limited Warranty expressly set forth in Section 10.1, the Services, Software, Documentation, and any related services are provided “AS IS.”  To the maximum extent permitted by Applicable Law, Vidyard disclaims all other warranties and conditions, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, uninterrupted service, or error-free operation. Vidyard is not responsible for delays, failures or performance issues inherent in the use of the Internet, electronic communications, or other systems outside of Vidyard’s reasonable control.

10.3. CUSTOMER REPRESENTATIONS AND WARRANTIES.  You represent and warrant that: (a) you have the full right and authority to enter into, execute, and perform your obligations under this Agreement; (b) you own or have the necessary licenses, rights, consents and permissions to use, publish and grant the rights in and to Customer Content as contemplated under this Agreement; (c) our use of Customer Content in accordance with the rights and licenses granted to Vidyard under this Agreement do not and will not infringe, misappropriate, or otherwise violate the rights (including intellectual property, privacy or publicity rights) of any third party; (d) you have provided all necessary notices to, and obtained all necessary consents from, any identifiable individuals appearing in Customer Content; and (e) no payments of any kind will be due by Vidyard or its sublicensees (if applicable) to any person or organization for Vidyard's use or distribution of Customer Content in accordance with the licenses granted under this Agreement.

11. Indemnification

11.1. BY VIDYARD.  Subject to Section 11.2 below, Vidyard will defend Customer against any third-party claim brought against Customer to the extent alleging that the Services, as provided by Vidyard and used by Customer in accordance with this Agreement, infringe or misappropriate any copyright, trade secret, patent or trademark right of such third party (an “Infringement Claim”), and will indemnify and hold harmless Customer from and against any damages or costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or agreed to in settlement by Vidyard as a result of such Infringement Claim.

11.2. EXCLUSIONS. Vidyard will have no obligations under Section 11.1 above to the extent an Infringement Claim arises from: (a) modification of the Services by Customer or any User; (b) use of the Services in violation of this Agreement or in a manner inconsistent with the Documentation; (c) use of the Services in combination with any applications, products, or services not provided by Vidyard, if the Infringement Claim would not have arisen but for such combination; (d) Customer or a User’s use of Non-Vidyard Services; (e) Customer Content or Viewer Data; or (f) use of the Services after Vidyard has notified Customer to discontinue such use as a result of a potential or existing intellectual property infringement claim.

11.3. POSSIBLE INFRINGEMENT.  If the Services become, or in Vidyard’s reasonable opinion are likely to become, the subject of an Infringement Claim, Vidyard may, at its option and expense: (a) obtain the right for you to continue using the affected Services; or (b) replace or modify the affected Services so that they become non-infringing without materially reducing their functionality. If options (a) or (b) are not commercially reasonable, Vidyard may instead terminate Customer’s access to the affected Services and refund any prepaid Fees covering the unused portion of the applicable Subscription Term for such affected Services as of the effective date of termination.

11.4. EXCLUSIVE REMEDY. Sections 11.1 through 11.3 (inclusive) state Vidyard’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any claim of infringement or misappropriation of third-party intellectual property rights arising out of or relating to the Services.

11.5. CUSTOMER INDEMNIFICATION.  Customer will defend, indemnify and hold harmless Vidyard and its Affiliates from and against all losses, liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any third-party claim against Vidyard or its Affiliates regarding: (a) Customer Content or Viewer Data; (b) Customer’s failure to obtain any of the necessary Privacy Consents required by Section 6.2 (Lawful Basis); or (c) Customer’s breach of Section 2.4(a) (Restrictions).

11.6. PROCESS.  The Party seeking indemnification (the “Indemnified Party”) will promptly provide written notice to the other Party (the “Indemnifying Party”) of any claim for which indemnification is sought and will cooperate with the Indemnifying Party in defending such claim. The Indemnifying Party will have sole control over the defense and settlement of the claim, except that: (a) any settlement requiring the Indemnified Party to admit liability or imposing any monetary obligation on the Indemnified Party requires the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed; and (b) the Indemnified Party may participate in the defense with its own counsel at its own expense.

12. Limitations of liability and damages

12.1. EXCLUSION OF DAMAGES.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE CUSTOMER NOR VIDYARD WILL BE LIABLE UNDER THIS AGREEMENT FOR (a) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; AND (b) LOSS OF USE, DATA, BUSINESS, REVENUE OR PROFITS, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO: (i) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT; AND (ii) CUSTOMER’S BREACH OF SECTIONS 2.4(A) OR 2.4(B) (COLLECTIVELY, THE “EXCLUDED CLAIMS”).

12.2. LIMITATIONS OF LIABILITY.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING, EXCLUDED CLAIMS AND FEES OWED BY CUSTOMER UNDER THIS AGREEMENT ARE NOT SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 12.2.

13. Privacy and security

13.1. DATA PROCESSING ADDENDUM. The Data Processing Addendum, available at www.vidyard.com/dpa/ (the “DPA”), describes the parties’ respective obligations with respect to the privacy and security of any personal information processed in the course of providing the Services. The parties agree to comply with the terms of the DPA, which is incorporated into this Agreement by this reference.

13.2. SECURITY PROGRAM. Vidyard has implemented and will maintain an information security program that includes appropriate physical, technical and organizational measures designed to protect Customer Content and Viewer Data from unauthorized access, use, disclosure, alteration, or destruction, including the measures described in the Vidyard Security Addendum, available at www.vidyard.com/security-addendum. Vidyard will also maintain a compliance program that includes independent third-party audits or assessments of its security controls. Additional information regarding Vidyard’s security program is available at Vidyard’s Trust Center at https://trust.vidyard.com/, as updated from time to time.

13.3. PRIVACY POLICY.  Vidyard’s collection and use of personal information relating to Users, to the extent such information is collected or processed by Vidyard in connection with providing and operating the Services, is governed by our Privacy Policy (available at www.vidyard.com/privacy/). Customer acknowledges that, in connection with providing and operating the Services, such personal information may be transferred to various jurisdictions as contemplated by this Agreement, the DPA or the Privacy Policy, as applicable. As part of providing the Services to you, we may send you and any Users certain service-related and administrative communications, and such communications are considered part of the Services and your Account.

14. Confidentiality

14.1. CONFIDENTIAL INFORMATION. During the course of this Agreement, each Party (the "Disclosing Party") may disclose to the other Party (the "Receiving Party") information that is identified as, or should reasonably be understood to be, proprietary or confidential ("Confidential Information"). Confidential Information includes: (a) this Agreement and any Sales Orders; (b) the Services, Software, and Documentation (in the case of Vidyard as the Disclosing Party); (c) business plans, product plans and roadmaps, strategies, forecasts, and analyses; (d) financial information and fee structures; (e) business processes, methods and models; and (f) technical information and documentation. Confidential Information does not include information that: (i) is publicly available when received, or subsequently becomes publicly available through no fault of the Receiving Party; (ii) is obtained by the Receiving Party from a third party without obligation of confidentiality and without breach of any obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (iv) was already in the possession of the Receiving Party without obligation of confidentiality prior to disclosure by the Disclosing Party.

14.2. CONFIDENTIALITY OBLIGATIONS. The Receiving Party will: (i) protect Confidential Information using the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; (ii) except as otherwise required in the course of providing the Services to Customer, not disclose Confidential Information to any third party except to its or its Affiliates’ employees, contractors, and advisors who have a legitimate need to know and are bound by confidentiality obligations at least as protective as those in this Agreement, or as necessary to perform its obligations under this Agreement; and (iii) not use Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement.

14.3. COMPELLED DISCLOSURE. The Receiving Party may disclose Confidential Information to the extent required by Applicable Law, court order, or other legal process, provided that, to the extent permitted by Applicable Law, the Receiving Party: (i) promptly notifies the Disclosing Party in writing of such requirement prior to disclosure; (ii) cooperates with the Disclosing Party, at the Disclosing Party's expense, in any lawful effort to seek a protective order or other appropriate remedy; and (iii) discloses only that portion of the Confidential Information that is legally required to be disclosed.

14.4. EQUITABLE RELIEF. Each Party acknowledges that a breach of this Section 14 may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party will be entitled to seek equitable relief, including injunctive relief and specific performance, without the requirement of posting a bond or proving actual damages.

14.5. RETURN OR DESTRUCTION. Upon termination of this Agreement or upon the Disclosing Party's written request, the Receiving Party will promptly destroy all Confidential Information in its possession or control, except that the Receiving Party may retain copies as required by Applicable Law or professional standards, subject to continued confidentiality obligations.

15. Term and termination

15.1. TERM. This Agreement will commence on the Effective Date and will remain in effect until terminated pursuant to the terms of this Agreement or until all Sales Orders issued pursuant to this Agreement have expired or been terminated, whichever occurs later.

15.2. AUTOMATIC RENEWAL. Except as otherwise stated in an applicable Sales Order, each Sales Order will automatically renew for successive twelve (12) month periods (each, a “Renewal Term”) upon expiration of each Subscription Term, subject to any price increases as set forth in Section 3.3, unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the Subscription Term for that Sales Order.

15.3. TERMINATION OF THE AGREEMENT. Either Party may terminate this Agreement: (a) if the other Party materially breaches this Agreement and, if such breach is capable of being cured, fails to cure the breach within thirty (30) days after receiving written notice thereof; or (b) immediately upon written notice if the other Party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to any proceedings relating to liquidation, receivership, or bankruptcy. Except as set forth in Section 15.4 below, termination of this Agreement does not entitle Customer to any refund of Fees paid, and Customer remains responsible for all Fees due under any active Sales Orders through the end of each applicable Subscription Term.

15.4. EFFECT OF TERMINATION.  Upon expiration or termination of any Sales Order (or termination of this Agreement, which will automatically terminate all active Sales Orders), Customer’s (and all Users’) right to access and use the Services will immediately cease. If Customer terminates this Agreement due to a material breach by Vidyard, Vidyard will refund a pro-rated portion of any prepaid Fees for the unused remainder of the applicable Subscription Term under the terminated Sales Order within sixty (60) days after the effective date of termination. If Vidyard terminates this Agreement (or any Sales Order) due to a material breach by Customer (or any User), all unpaid Fees for the remainder of the Subscription Term will become immediately due and payable.

15.5. RETURN OF CUSTOMER MATERIALS. Upon expiration or termination of this Agreement (or an applicable Sales Order, if earlier), Customer will be entitled to extract Customer Content and Viewer Data stored in the Services through a mechanism made available by Vidyard for a period of thirty (30) days following such expiration or termination (the “Extraction Grace Period”). Following the Extraction Grace Period, Vidyard will delete all Customer Content and Viewer Data and cancel Customer’s Account within sixty (60) days. You acknowledge and agree that Customer Content and Viewer Data may be retained in system backups in accordance with Vidyard's standard backup and retention policies as described in the Documentation, provided such retained data remains subject to the confidentiality obligations of this Agreement.

15.6. SURVIVAL.  Sections 3 (Fees and Payment), 5.4 (Content Retention, Preservation and Disclosure), 11 (Indemnification), 12 (Limitations of Liability and Damages), 13 (Privacy and Security), 14 (Confidentiality), 15.4 (Effect of Termination), 15.5 (Return of Customer Materials), and 16 (General Provisions) of this Agreement, as well as any representations and warranties made by Customer under this Agreement, together with any other provision required for their construction or enforcement, will survive termination of this Agreement for any reason.

16. General provisions

16.1. ASSIGNMENT.  Neither Party may assign this Agreement, or any of the rights or obligations under this Agreement, in whole or in part, to any third party without the prior written consent of the other Party except that: (a) either Party may assign this Agreement, upon written notice to the other party, to a successor entity in connection with a merger, acquisition, consolidation or sale of substantially all of its assets; and (b) Vidyard may, upon written notice to Customer, assign this Agreement to an Affiliate.

16.2. ENTIRE AGREEMENT AND CONFLICT.  This Agreement (including all Sales Orders and incorporated terms) represents the Parties’ entire understanding regarding the Services. In the event of any conflict or inconsistency among the terms of this Agreement, the following order of precedence will apply: (i) the applicable Sales Order; (ii) the DPA; (iii) the Product Specific Terms; and (iv) this Agreement.

16.3. INTERPRETATION. In this Agreement, unless the context otherwise requires: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) references to Sections or other subdivisions are to the Sections or subdivisions of this Agreement; and (c) the singular includes the plural and vice versa.

16.4. PURCHASE ORDERS. Customer may issue purchase orders or similar procurement documents in connection with this Agreement for convenience or to meet its internal procurement requirements. However, any additional, conflicting, or different terms or conditions contained in any such purchase order or other Customer procurement document are of no effect and do not modify, amend, or supplement this Agreement.

16.5. NOTICE.  All notices required or permitted under this Agreement will be in writing and sent by email. Notices will be deemed given upon one (1) business day after e-mail transmission. Notices to Customer will be sent to the email address specified in the applicable Sales Order. Notices to Vidyard will be sent to legal@vidyard.com. Either Party may update its notice address by providing written notice to the other Party in accordance with this Section.

16.6. PUBLICITY.  Unless otherwise stated in a Sales Order, Vidyard may identify Customer as a customer of Vidyard and use Customer's name and logo in customer lists, marketing materials, and presentations. Customer may withdraw its consent at any time by providing written notice to Vidyard. Upon receipt of such notice, Vidyard will cease such use within a reasonable period of time, but will not be required to recall or modify materials already in distribution.

16.7. FORCE MAJEURE.  Except for your obligation to pay the Fees, neither Party will be responsible for delay or failure to perform its obligations under this Agreement due to events or circumstances beyond its reasonable control. Such causes include acts of God, pandemics, epidemics, labour disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.

16.8. WAIVER.  A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given.

16.9. AMENDMENT. Vidyard may modify this Agreement (including any incorporated policies or terms) from time to time by providing Customer with at least thirty (30) days prior written notice. Such modified terms will apply to Customer upon the earlier of: (a) Customer entering into any new Sales Order after the effective date of the change; or (b) the start of the next Renewal Term after the end of the notice period above. If Customer objects to any such modified terms, Customer may elect not to renew the affected Sales Order(s) in accordance with the terms of Section 15.2.

16.10. RELATIONSHIP OF THE PARTIES.  The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship.

16.11. DISPUTE RESOLUTION.

(a) U.S. Customers. If Customer's address as indicated on the applicable Sales Order is located in the United States, this Agreement will be governed by the laws of the State of Delaware, without regard to its conflicts of law principles. Any action or proceeding arising from or relating to this Agreement may only be brought in the state or federal courts located in the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts.

(b) Non-U.S. Customers. If Customer's address as indicated on the applicable Sales Order is located outside the United States, this Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflicts of law principles. Any action or proceeding arising from or relating to this Agreement may only be brought in the courts located in Toronto, Ontario, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts.

(c) Exclusion of CISG. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention) will not apply to this Agreement or the transactions contemplated by this Agreement.

(d) Limitation Period. No cause of action arising hereunder or relating hereto may be brought more than two (2) years after it first accrues.

16.12. TECHNOLOGY EXPORT; SANCTIONS. Customer will not: (a) permit any third party to access or use the Services in violation of any Applicable Laws; or (b) export any Software or otherwise remove it from any jurisdiction except in compliance with all applicable export control laws and regulations of the jurisdiction from which the Software is exported, including: (i) for customers in the United States, the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR); (ii) for customers in Canada, the Export and Import Controls Act and related regulations; (iii) for customers in the United Kingdom, the Export Control Act 2002 and related statutory instruments; and (iv) for customers in the European Union, the EU Dual-Use Regulation and related member state legislation. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Services in, or export such Software to: (A) any country, territory, or jurisdiction subject to comprehensive sanctions or embargos under Applicable Law; or (B) any person or entity designated on any applicable restricted party list, including the U.S. Treasury Department's List of Specially Designated Nationals, the U.S. Commerce Department's Denied Persons List, Unverified List, or Entity List, Canada's Consolidated List of Sanctions, the UK's Consolidated List of Financial Sanctions Targets, or the EU's Consolidated List of Sanctions. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country, territory, or jurisdiction, and is not designated on any such restricted party list.

16.13. GOVERNMENT USE. The Services, Software, and Documentation provided under this Agreement are commercial items, developed at private expense, and proprietary to Vidyard. If you are a U.S. Government or public entity or are using the Services on behalf of such an entity, you acknowledge that the Services, Software, and Documentation are provided as "Commercial Items," as that term is defined at 48 C.F.R. § 2.101, and are subject to the rights and restrictions applicable to commercial computer software and commercial computer software documentation under 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. In accordance with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, all U.S. Government end users acquire the Software and Documentation with only those rights set forth herein. Vidyard reserves all unpublished rights under the United States copyright laws. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in this clause and any applicable laws and regulations.