Developers
 VYDEOTM SDK SOFTWARE LICENSE AGREEMENT
 
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR: THE LIMITATIONS ON USE CONTAINED IN SECTIONS 2, 3, 4 AND 5; WARRANTY IN SECTION 9; AND LIABILITY IN SECTION 10. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g., CD-ROM) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE, AND YOU DO NOT ACCEPT THIS  AGREEMENT, YOU MAY NOT USE THE SOFTWARE.
 
Vyu Labs, Inc. (collectively “Vyu”) and its affiliates and suppliers own all intellectual property in the Software.  Vyu permits You to Use the Software only in accordance with the terms of this Agreement.  Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement or “Read Me” file located near such materials.
 
1.  DEFINITIONS
 
“Access Code” shall mean the serialised code issued to a Developer to enable such Developer to Use the Software on the iOS (v1.x onwards) and Android (v1.x onwards) mobile operating systems, connect and interface with the Test Bed and develop and distribute the Developer Programs.
“Code” means certain object code and Source Code files designated in the Documentation as “Code.” 
“Developer Program” means Your application programs that are designed and developed to be Used with the Software.


“Developer,” “You,” and “Your” refer to any person or entity Using this Software, or any component thereof. 
“Documentation” means explanatory materials supplied with the Software or made available online on Vyu operated public web pages related to the Software.


“End User License Agreement” means an end user license agreement that provides a: (a) limited, nonexclusive right to use the subject Developer Program with no further right to reproduce (except for archival and/or backup copies permitted by law) and/or distribute the subject Developer Program; (b) prohibition against distributing, selling, sublicensing, renting, loaning or leasing the subject Developer Program; (c) prohibition against reverse engineering, decompiling, disassembling or otherwise attempting to discover the source code of the subject Developer Program that is substantially similar to that set forth in Section 3 below;  (d) statement that Vyu and its affiliates and suppliers retain all right, title and interest in the Software and You and Your suppliers retain all right, title and interest in the subject Developer Program that is substantially similar to that set forth as Section 5 below, (f) statement that Your suppliers disclaim all warranties, conditions, representations or terms with respect to the subject Developer Program substantially similar to the disclaimer set forth as Section 7 below, and (g) limit of liability substantially similar to that set forth as Section 8 below for the benefit of Your suppliers.
“Software Tools” means developer tools (including but not limited to plug-ins and compiled samples) supplied with the Software, the selection of which may change from time to time at Vyu’s sole discretion.
“Software” means the software with which this Agreement is provided, including but not limited to (i) Code; (iv) Documentation; (v) Software Tools; and (vi) any upgrades, modified versions, updates, and/or additions thereto, if any, provided to You by Vyu. 


“Source Code” shall mean the source code files designated in the Documentation as “Source Code”.
“Test Bed” shall mean the infrastructure, including servers and communication channels, owned/licensed and operated by Vyu and through which Vyu enables the Use of the Software by the Developer and the users of the Developer Programs and shall include any Software Tools.


“Use”, “Used” or “Using” means to access, install, download, copy or otherwise utilise the Software.
“Vyu” means Vyu Labs, Inc., a Delaware corporation, having its principle place of business at 19732 Drake Court, Cupertino, California 95014.


“You” or “Your” means and refers to the person or entity Using the Software pursuant to and in accordance with this Agreement.
 
2.  LICENSE
 
Subject to the terms and conditions of this Software License Agreement (this “Agreement”), Vyu grants You a non-exclusive, revocable and non-transferable license (“License”) to (a) Use the Software for the sole purpose of internally developing Developer Programs that embed/integrate the Software, (b) sublicense Code in object code form only as a component of Developer Programs, provided that (i) You sub-license and distribute such object code under the terms and conditions of an End User License Agreement, (ii) You include a copyright notice reflecting the copyright ownership of Vyu in the Software and of the Developer in such Developer Programs, (iii) You shall be solely responsible to Your testers/users for any update or support obligation or other liability which may arise from such distribution, (iv) You shall not make any statements that Your Developer Product is “certified,” or that its performance is guaranteed, by Vyu, and (v) You do not use Vyu’s name or trademarks to market Your Developer Product without written permission of Vyu.  You may make a limited number of copies of the Documentation to be used by Your employees or consultants for internal development purposes and not for general business purposes or for distribution by any means, and such employees or consultants shall be subject to this Agreement.
 
3.  RESTRICTIONS
 
3.1           General Restrictions.  Except for the limited distribution rights as provided in Section 2 above with respect to Code, You may not distribute, sell, sublicense, rent, loan, or lease the Software, and/or any component thereof to any third party. You shall not commercialise or otherwise derive any revenue or commercial benefit from the sale, distribution, license or lease of any Developer Program incorporating or integrating the Software without the prior execution of a license agreement with Vyu setting out the commercial terms and license and service fee due to Vyu for the licensing of the Software and use of Vyu’s infrastructure (respectively) in the course of usage with the Developer Program(s) sought to be commercialised. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software and/or any component thereof except to the extent (a) You may be expressly permitted to decompile under applicable law, (b) it is essential to do so in order to achieve operability of the Software with another software program, and (c) You have first asked Vyu to provide the information necessary to achieve such operability and Vyu has not made such information available. Vyu has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by Vyu and any information obtained by You by such permitted decompilation may only be used by You for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software.  Requests for such information should be directed to the Vyu Customer Support Department.

3.2           Development Restrictions.  You agree that You will not Use the Software to create, develop or use any program, software or service which (a) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (b) when used in the manner in which it is intended, violates any material law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) interferes with the operability of other Vyu or third-party programs or software or servers which run with the Software; or (d) is of an immoral, offensive, abusive or prurient nature, is likely to harass, threaten or intimidate any users of the Developer Programs or is likely to bring disrepute to the Software, Test Bed or Vyu.

3.3           Vyu’s Right to Reject.  You agree that Vyu shall have the right to inspect and reject any Developer Programs that it believes, in its sole judgment and discretion, violates any terms of this Agreement or is otherwise abusive, illegal or disruptive.  In such case, it shall be entitled to deny access to the Test Bed to such Developer Program, terminate the License with respect to such Developer Program and delete all copies of the Developer Program and any information (including user information) related to such Developer Program from the Test Bed and within its possession or control.

3.4           System Integrity. Without prejudice to its rights under law or contract, Vyu retains the right to suspend or terminate the License and Your access to the Test Bed in the event that it determines or reasonably believes, in each case in its sole determination, that: (a) Your use/access or continued use/access to the Software or Test Bed disrupts or adversely affects the integrity and availability of the Software/Test Bed or adversely affects the ability of any other person to use or access the Software/Test Bed, (b) You or Your Developer Program contain or have introduced or attempted to introduce any malware, spyware, Trojan horses, worms, time bombs, cancelbots or other malicious software or computer programming routines into the Software/Test Bed that is/are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system (including the Test Bed or any component thereof), data or personal information or (c) You are in breach of any representation, warranty or covenant therein, in each case with or without notice to You. Vyu may, at its discretion and with due regard to the gravity and repetitive character of the violation/conduct either (x) elect to suspend Your License and access to the Test Bed with notice to you indicating the reasons for suspension, and with such suspension of Your License and access to the Test Bed continuing till You are able to satisfy Vyu of the rectification of the notified defect, violation or conduct or (y) elect to terminate Your License and access to the Test Bed in accordance with Section 8 hereof.
 
4.  CONFIDENTIAL INFORMATION
 
You agree not to disseminate or in any way disclose the Source Code to any person, firm or business except for Your employees who need to know such Source Code and who have previously agreed to be bound by a confidentiality obligation consistent with the obligation set forth in this Section 4.  Further, You agree to treat the Source Code and any information relating to the Source Code (“SC Information”) with the same degree of care as You accord to Your own confidential information, but in any event no less than reasonable care. Your obligations under this section with respect to the SC Information  shall terminate when You can document that such SC Information was (a) in the public domain at or subsequent to the time it was communicated to You by Vyu through no fault of Yours, (b) developed by Your employees or agents independently of and without reference to any information communicated to You by Vyu; or (c) disclosed in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under this Agreement. In the event of (c), You agree to provide prompt written notice of such order or legal requirement, unless such disclosure is prohibited by applicable law, to Vyu to enable Vyu to seek a protective order or otherwise prevent or restrict such disclosure. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order. You will disclose only such SC Information as You reasonably deem is legally required and will use reasonable efforts to obtain confidential treatment for any SC Information that is so disclosed.
 
5.   ACCESS OF TEST BED
 
5.1           The Developer that is licensed to Use the Software in accordance with Section 2 shall register with the website operated by Vyu and shall, subject to the availability of free/unutlised Access Codes, be issued with an Access Code. Each Developer Program developed by the Developer shall be paired with the Access Code, and will be able to access and use the Test Bed through the Access Code. Unless otherwise agreed with Vyu, each Access Code shall expire within 60 (sixty) days of issuance to You. Unless approved by Vyu in writing, You shall not use a Developer Program (including a Developer Program who’s Access Code has expired) with any other Access Code.

5.2           An Access Code shall enable You and Your Developer Program to access and use the Test Bed during its validity period as aforesaid and subject to the terms of this Agreement. Vyu agrees to make available, on good faith basis, a Test Bed with support for 1000 (one thousand) simultaneous users of the Software as integrated in the Developer Program against a single Access Code. However, You agree and acknowledge that Vyu is making the Test Bed available on reasonable efforts basis and shall not be liable for any network congestion, latency or unavailability of capacity due to unexpectedly high volumes of traffic or usage, scheduled/unscheduled maintenance or factors beyond the reasonable control and foresight of Vyu. Vyu also agrees to provide you with technical support and Documentation as considered necessary or appropriate by Vyu, in its discretion, for the purpose of enabling the development of Developer Program(s).
 
6. CONSIDERATION
 
The fulfilment by You and Vyu of their respective obligations and covenants to each other on mutual basis shall form the consideration for this Agreement. Each of You and Vyu agree to bear any costs, expenses and/or taxes incurred or applicable on the performance and fulfilment of its respective obligations and covenants hereunder.
 
7.  INTELLECTUAL PROPERTY, OWNERSHIP, COPYRIGHT PROTECTION
 
The Software and any authorized copies that You make are the intellectual property of and are owned by Vyu and its affiliates and suppliers.  The structure, organization and code of the Software are the valuable trade secrets and confidential information of Vyu and its affiliates and suppliers.  The Software is protected by law including, without limitation, the patent and copyright laws of the United States and other countries, and by international treaty provisions.  You agree to protect Vyu’s patent, copyright and other ownership interests in all items in the Software. You agree that all copies of items in the Software reproduced for any reason by You will contain the same copyright, patent, trademark, and other proprietary notices as appropriate and appear on or in the master items delivered by Vyu in the Software. Vyu and/or its suppliers retain all right, title and ownership throughout the world in the intellectual property embodied within the Software.  Except as stated herein, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Software, and all rights not expressly granted are reserved by Vyu and its affiliates and suppliers.
 
8.  TERM
 
This Agreement is effective until terminated (“Term”). Either the Developer or Vyu may terminate this Agreement with prior written notice of 30 (thirty) days. Vyu has the right to terminate this Agreement immediately if You fail to comply with any term of this Agreement (“Material Breach”). Upon termination for Material Breach, without prejudice to the rights and remedies available to Vyu under this Agreement or applicable law, Vyu shall be entitled to delete any and all Developer Programs and all other user information or other material related to the Developer Program in its possession or on the Test Bed immediately and without notice or liability. Upon any such termination, You must (a) return all full and partial copies of the items in the Software immediately to Vyu and (b) discontinue distribution of any Code or Developer Programs.  Sections 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive any termination and/or expiration of this Agreement.
 
9.  DISCLAIMER OF WARRANTY
 
Vyu licenses the Software, provides access to the Test Bed and provide technical support to You on an “AS IS” basis and without warranty of any kind. VYU AND ITS AFFILIATES AND SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE AND/OR TEST BED. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, VYU AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO THE SOFTWARE OR ANY COMPONENT THEREOF, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, CONTINUOUS AVAIALBILITY, INTEGRATION, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.   VYU EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES THAT THE SOFTWARE, TEST BED AND TECHNICAL SUPPORT LICENSED AND/OR PROVIDED TO YOU SHALL BE ACCURATE, USEFUL OR SHALL MEET YOUR EXPECTATIONS. VYU AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT AN ACCESS CODE WILL BE AVAILABLE AND WILL BE ISSUED TO YOU ON REGISTRATION WITH VYU, AND ANY DECISION TO ISSUE AN ACCESS CODE TO YOU SHALL BE AT VYU’S SOLE DISCRETION.
 
10.   LIMITATION OF LIABILITY
 
IN NO EVENT WILL VYU OR ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM THIS AGREEMENT AND/OR YOUR USE OF THE SOFTWARE OR ANY COMPONENT THEREOF, INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN VYU REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY.  THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.  VYU’S AGGREGATE  LIABILITY AND THAT OF ITS AFFILIATES OR SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO FIFTY U.S. DOLLARS ($50.00). Vyu is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose.
 
11.   INDEMNIFICATION
 
You agree to defend, indemnify, and hold Vyu, its affiliates and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of Developer Programs, provided that Vyu gives You prompt written notice of any such claim, tenders to You the defense or settlement of such a claim at Your expense, and cooperates with You, at Your expense, in defending or settling such claim.
 
12.  EXPORT RULES
 
You agree that the Software and any Developer Program that include Code are subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that You will comply with the Export Laws. You will not ship, transfer, export, or re-export the Software and any Developer Program that include Code, directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”); (b) any end user whom You know or have reason to know will utilize them in the design, development, or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”); or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, You are responsible for complying with any local laws in Your jurisdiction which may impact Your right to import, export or use the Software and any Developer Program that include Code. You represent and warrant that You: (a) are not a citizen of, or located within, an Embargoed Country; (b) will not use the Software for a Prohibited Use; and (c) are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement. If Vyu has knowledge that a violation has occurred, Vyu may be prohibited from providing maintenance and support for the Software.
 
13.  GOVERNING LAW
 
This agreement will be governed by and construed in accordance with the substantive laws in force in the State of California, without reference to its conflict of law rules. The respective courts of Santa Clara County, California shall each have exclusive jurisdiction over all disputes relating to this Agreement. Notwithstanding any provision in this Agreement, Vyu may apply to or request any judicial, administrative, or other authority in any part of the world to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies.
 
14.  GENERAL
 
You may not assign Your rights or obligations granted under this Agreement without the prior written consent of Vyu. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Vyu, its agents, or employees, but only by an instrument in writing signed by an authorized signatory of Vyu. It is expressly agreed that a breach of Section 3 or 4 of this Agreement will cause irreparable harm to Vyu and that a remedy at law will be inadequate. Therefore, in addition to any and all remedies available at law, Vyu will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation thereof.  When conflicting language exists between this Agreement and any other agreement included in this Software this Agreement shall supersede to the extent of the conflict. If Vyu employs attorneys to enforce any rights arising out of or relating to this Agreement and prevails in such action, Vyu shall be entitled to recover reasonable attorneys’ fees. You acknowledge that You have read this Agreement, understand it, and that it is the complete and exclusive statement of Your agreement with Vyu which supersedes any prior agreement, oral or written, between Vyu and You with respect to the licensing to You of the Software. No variation of the terms of this Agreement will be enforceable against Vyu unless Vyu gives its express consent in a writing signed by an authorized signatory of Vyu.  If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. 
 
15.  COMPLIANCE WITH LICENSES
 
You agree that, in addition to any license compliance checking performed by the Software, Vyu or its authorized representative have the right, no more than once every twelve (12) months, upon seven (7) business days’ prior notice to You, to inspect Your records, systems, and facilities to verify that its use of any and all Vyu software or service is in conformity with its valid licenses from Vyu. For example, Vyu has the right to those of Your records useful to determine whether installations of the Software have been serialized, and You shall provide such records to Vyu promptly upon request by Vyu. Additionally, You shall provide Vyu with all records and information requested by Vyu in order to verify that its use of any and all Vyu software is in conformity with its valid licenses from Vyu within thirty (30) days of Vyu’s request.
 
16.  PRE-RELEASE SOFTWARE ADDITIONAL TERMS
 
If the Software is labelled (in the Documentation) a pre-commercial release or beta software ("Pre-release Software"), then this Section applies. The Pre-release Software is a pre-release version, does not represent final product from Vyu, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Vyu may never commercially release the Pre-release Software. If You received the Pre-release Software pursuant to a separate written agreement, such as the Vyu Labs Incorporated Serial Agreement for Unreleased Products, Your use of the Software is also governed by such agreement. You will return or destroy all copies of Pre-release Software upon request by Vyu or upon Vyu's commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK.
 
If You have any questions regarding this Agreement or if You wish to request any information from Vyu please use the address and contact information included with this product to contact the Vyu office serving Your jurisdiction.
 
The Vydeo name and logo, the Vyu name and logo, and other Vyu trademarks, service marks, graphics, and logos used in connection with Vyu’s services are trademarks or registered trademarks of Vyu Labs, Inc. in the United States of America and/or other countries.
    
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