End User Agreement

VORTEX End User Agreement

These Terms of Service constitute an agreement (this “Agreement”) by and between VIVOTEK Inc., a Taiwan corporation, having its principal office at 6F, No. 192, Lien-Cheng Rd., Chung-Ho, New Taipei City, Taiwan, ("VIVOTEK") and the corporation, LLC, partnership, sole proprietorship, or other business entity executing the order referencing this Agreement (“User”). User accepts the Agreement and agrees to be bound by the terms hereof by clicking a box indicating its acceptance in the login page of VORTEX Portal where a link to this Agreement is provided. User’s use of and VIVOTEK provision of VORTEX (as defined below in Section1) are governed by this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON SUBSCRIBER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUBSCRIBER TO THESE TERMS AND CONDITIONS.

1.              DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

 “Documentation” means the online documentations and instructions regarding the Hardware and Software in official VIVOTEK web site

.

“Effective Date” means the date when this Agreement is effective

“Firmware” means the software VIVOTEK developed and maintained that runs on the Hardware which perform functionalities such as video and audio encoding or streaming, VCA features and communications to the Hosted Software.

“Hardware” means the VIVOTEK hardware products which can communicate with VORTEX, including network cameras, NVR, etc.

“Hosted Software” means, known as “VORTEX,” and related infrastructure made available to User to manage and control the Hardware.

“License” has the meaning ascribed to it in Section 2.1

“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.

“Reseller” means a third-party authorized by VIVOTEK to resell the VORTEX Service, to whom customer has delivered a Purchase Order for it.

“Products” means, collectively, the Software, Hardware, Usage Statistics, Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.

“Order” means each order document submitted to VIVOTEK by a reseller on behalf of User, and accepted by VIVOTEK, indicating reseller’s firm commitment to purchase the Products for the prices listed thereon.

“Service Level Agreement” means the Service Level Agreement set forth on Exhibit A hereto.

“Software” means the Firmware and Hosted Software.

“Support” means the technical support services and available resources.

“User” means employees of customer, or other third parties, each of whom are authorized by customer to use VORTEX on customer’s behalf.

“User Data” means data includes, but is not limited to, (i) User contact details, names, emails (ii) video and audio data collected from VORTEX and managed by Users (iii) analytics data derived from video and audio data and (iv) logs generated by VORTEX.

“VORTEX” means the whole VORTEX system, VIVOTEK Software-as-a-Service solution including Software and Hardware as well as Video Content Analysis features, the VORTEX Mobile App for iOS and Android OS.

 

2.              LICENSE AND RESTRICTIONS

• License:

Subject to the terms of this Agreement, VIVOTEK grants User a nonexclusive, non-transferable, non-sublicensable and royalty-free worldwide license during each License Term to internally use the VORTEX only for the purpose of monitoring its facilities or the surrounding area and only in accordance with Documentation VIVOTEK provided. The VORTEX will be operated on a remote, software-as-a-service basis. Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and User does NOT receive title to or ownership of any copy or of the Licensed Software itself.

• Restrictions:

User shall:

• NOT use VIVOTEK Service in any other way allow third parties to exploit VORTEX system or related technologies.
• NOT provide VORTEX passwords or other log-in information to any third party
• NOT use VORTEX in any way that could damage, disable, overburden, or interfere with any other party’s use.
• NOT share non-public VORTEX features or content with any third party
• NOT modify, create derivative works from VORTEXs
• NOT reverse engineer, decompile or disassemble VORTEX in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of VORTEX, or to copy any ideas, features, functions or graphics of VORTEX
• NOT rent, lease, sub-license, loan, provide, or otherwise make available, VORTEX in any form, in whole or in part to any person without prior written consent from VIVOTEK.
• NOT use VORTEX to conduct any malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations
• comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of User Data, privacy, and use of video surveillance
• be responsible for identifying one or more individuals within User’s organization who will act as administrator(s) of User’s account. Such person(s) will be responsible for monitoring and managing access privileges of other Users
  • Limitations:

User recognizes that:

• User should set up proper network infrastructure such as router / firewall / gateway along with high-speed internet to use VORTEX service.
• VIVOTEK does not provide or maintain User’s network infrastructure
• VIVOTEK does not provide Internet access and is not responsible for any failure of the VORTEX due to network infrastructure or Internet access issues.
• Performance of VORTEX will vary based on User’s applications of the VORTEX, as well asUser’s network infrastructure quality and Internet bandwidth. VIVOTEK is not responsible pursuant to this Agreement for any equipment User uses in conjunction with the VORTEX.
• VORTEX is not intended to be used as part of any lifesaving or emergency management systems, and User will not use VORTEX in any of such purpose.
• VORTEX is not directly or indirectly exported, re-exported, or used to provide services in violation of the export laws and regulations of the United States or any other country

 

3.              TERM AND TERMINATION

3.1           Term. The term of this Agreement (the “Term”) begins on the Effective Date and continues for the period set forth in the Order.

3.2           Termination for Cause. Either party may terminate this Agreement or any License Term for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

3.3           Effects of Termination. Upon termination of this Agreement, User shall: (a) cease all use of VORTEX; (b) delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of User to pay Fees incurred before termination; (b) 4 (CONFIDENTIALITY), 5 (USER DATA PROTECTION), 6 (INDEMNIFICATION), 7(WARRANTY), 8 (LIMITATION OF LIABILITY); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose

4.              CONFIDENTIALITY

• Confidential Information. User agrees that all source code, inventions, algorithms, designs, know-how, ideas, technologies and all business, marketing plans, strategies, and financial information it obtains from VIVOTEK are the confidential property of VIVOTEK (“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in User’s possession at the time of disclosure; (ii) is independently developed by User without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of User’s improper action or inaction; User agrees that the Confidential Information may include VIVOTEK’s valuable trade secrets.
• Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its
• Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument as long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so

5.              User Data PROTECTION

As User owns the right of all right, title, and interest in and to the User Data, User also agrees that VIVOTEK may collect, use, process, and store information (User Data) about User’s use of VORTEX and transfer such information which maybe outside of the jurisdiction where User is located ONLY UNDER USER’S AUTHORIZATION OR PERMISSION, usually as part of the customer support process or via our sales engineering team. Authorized User Data and any additional information submitted to the VORTEX will be handled solely to improve, develop, and maintain the VORTEX service.

Unless the VORTEX receives User’s written consent, VIVOTEK: (a) shall not access, process, or otherwise use User Data other than as necessary to provide and/or improve VORTEX, and/or other VIVOTEK technologies and (b) shall not intentionally grant any third-party access to User Data. Notwithstanding the foregoing, VIVOTEK may disclose User Data as required by the applicable law or by the proper legal or governmental authority

6.              INDEMNIFICATION

User agrees that VIVOTEK has no liability whatsoever for any use User makes of VORTEX, or User Data. User shall indemnify and hold harmless VIVOTEK from any claims, actions, demands, damages, losses, liabilities, settlements, costs, and fees (including attorneys’ fees) arising from or in connection with: (i) User's use of VORTEX or any User Data (including any person’s claim regarding privacy rights), (ii) access to any part of VORTEX or User Data, as well as (iii) User's failure to comply with any term of this Agreement. For clarity, the foregoing includes claims brought by any person with respect to User’s use of the User Data

User shall defend, indemnify, and hold harmless VIVOTEK and its Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to User's alleged or actual use of, misuse of, or failure to use VORTEX, including without limitation:

(a)        claims by Users or by User's employees, as well as by User’s own customers.

(b)        claims that use of VORTEX violates a third party’s right to privacy or any related rights, including claims related to unauthorized recording of persons, whether or not such recording violates the law.

(c)         claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including information of User Data.

(d)        claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to VORTEX through User’s account.

(e)        claims that use of the VORTEX through User’s account harasses, defames, or defrauds a third party or violates the law. Indemnified Claims include, without limitation, claims arising out of or related to VIVOTEK’s negligence.

User’s obligations include, without limitation, retention and payment of attorneys and payment of court costs, as well as settlement at User’s expense and payment of judgments. VIVOTEK will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (VIVOTEK’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

7.              WARRANTY

7.1                       HARDWARE:

All Hardware are shipped with 5 years VIVOTEK limited standard warranty, as well as accessory products warranty. User can not replace the SD cards provided by VIVOTEK ( VIVOTEK's SD Card ) , VIVOTEK’s warranty  for SD cards only limited to VIVOTEK's SD Card . All the existing equipment and VIVOTEK's SD Card must be replaced by Reseller . Customer may return the Hardware to the original reseller (i) for repairment if defect is found in the Hardware either within or exceed warranty period; (ii) within 30 days from the date of activating license of the applicable Purchase Order if Customer is not satisfied about VORTEX. For more detailed information of policy and process for Hardware warranty and Return Materials Authorization (RMA). Please see https://www.vivotek.com/support/warranty-rma.

 

7.2                       SOFTWARE:

VIVOTEK warrants that VORTEX, when used as permitted under this Agreement, shall run substantially as described in the Documentation. VIVOTEK use its best efforts to ensure that the Hosted Software is available in accordance with the terms of the Service Level Agreement (See. Annex A)

If User experiences any issues or bugs from VORTEX, VIVOTEK will offer Support which will include fixes, patches, and upgrades that generally are free of charge. In some cases of Support, User might need to grant access to a member VIVOTEK’s Support team through functionalities provided by Firmware of Hardware or the Hosted Software.

VIVOTEK does NOT warrant:

(a)        that VORTEX will meet customer’s needs or expectations

(b)        that VORTEX will perform without interruption or error.

(c)         the defects of VORTEX will be corrected

(d)        that warranty to the extend VORTEX is provided on an evaluation basis.

(e)        that VORTEX are secure from hacking or other unauthorized intrusion or that user data will remain private or secure.

To the maximum extent permitted by applicable law and subject to the guarantee above, VIVOTEK disclaims all warranties, conditions and other terms, either express or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for a particular purpose with respect to VORTEX and the Documents..

8.              LIMITATIONS OF LIABILITY

VORTEX does NOT offer advice which User should rely on. What VORTEX offers are for general information purpose only. User are suggested to back up any content and data used in connection with VORTEX in case of problems with VORTEX.

User shall contact Resellers for technical support first. If the problems those user have encountered cannot be fixed by Resellers, then Resellers should notify VIVOTEK for support .If Support for VORTEX is delayed by an unexpected incident or event, VIVOTEK will contact Reseller as soon as possible and minimize the effect of the delay in its best effort. VIVOTEK will not be liable for delays caused by the incident or event.

To the maximum extent permitted by applicable law, VIVOTEK and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use VORTEX, even if the remedies provided from VIVOTEK fail of their essential purpose or even if VIVOTEK has been advised of the possibility of such damages in advance. In any case VIVOTEK entire liability under any provision of this Agreement shall be limited to the amount actually paid by User for VORTEX in the last 12 months. These limitations shall apply to the fullest extent possible.

9.              MISCELLANEOUS

9.1

All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth on an Order or such other address as such party last provided to the other by written notice. 

9.2

 

The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties.

 

9.3

If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal the other provisions will remain in force and effect. If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

9.4

This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods).  Except for claims for injunctive or equitable relief, which may be at any time brought before any court of competent jurisdiction, all disputes arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such rules. 

9.5

 

The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court.  For all purposes of this Section, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees

 

 

[Signature Page Follows]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives.

User                                         VIVOTEK Inc.

By:                                                   By:                                          

Name:                                                      Name:                                             

Title:                                                        Title:                                               

Date:        (yyyy/mm/dd)                                    Date:        (yyyy/mm/dd)                           

Annex A

Service Level Agreement

Service Levels

VIVOTEK will use commercially reasonable efforts to make the Hosted Software available 99.99% or more of the time during any calendar month. Subject to the exclusions set forth below, an “Outage” will be defined as any time when the Hosted Software is not available due to a cause within the control of VIVOTEK. The availability standard does not apply to any feature of the Hosted Software that VIVOTEK identifies as a “beta” feature or service.

Service Credits

If VIVOTEK fails to achieve the availability percentage above, customer will be eligible to receive a credit (“Service Credit”) calculated as a certain number of days added to the end of the License Term. Service Credits are based on the actual availability of the Hosted Software in a given calendar month as set forth below. Service Credits are non-transferable.

 

Service Availability	Service Credit
Less than 99.99%	3 days
Less than 99.9%	5 days
Less than 99%	10 days
Less than 90%	15 days

Exclusions

VIVOTEK does not include in its calculation of downtime any time the Hosted Software is not available due to:

• Planned maintenance windows where notice of planned unavailability has been given, via the Hosted Software, at least two business days prior to the outage, unless in the case of emergency changes;
• Force Majeure Events;
• Actions or inactions on customer’s part;
• Events arising from customer’s systems or any customer websites;
• ISP or Internet outages outside of VIVOTEK’s control.

Chronic Failure & Termination

customer may elect to terminate this Agreement in accordance with Section 3.2 if the Hosted Software is available less than 90% in a month for three consecutive months or any five months during a rolling twelve-month period.

Sole Remedy

Notwithstanding any terms to the contrary in the Agreement, the Service Credits are customer’s sole and exclusive remedy for any Outage.