Terms for Pexip Deliverables

2. Definitions 

"Affiliate"

Any direct or indirect parent or subsidiary of a Party (whether wholly, majority, or minority owned by the common owner), and any officer, director, employee, reseller, distributor, agent and/or joint venture partner of a Party.

"Conference"

A unique video conference session hosted and/or delivered through the Pexip Deliverables, and all data, packets, information, communication and/or material transmitted, copied, uploaded, transferred, controlled, downloaded, recorded, (whether or not recorded via functionality provided by the Pexip Deliverables, or any other installed or stand-alone device or medium) and/or otherwise associated with such unique videoconference session, including the Customer's Content.

"Content"

Any data, packets, information, communication, or other material that is transmitted, uploaded, transferred, controlled, downloaded, recorded, or otherwise made available or existing in conjunction with a Conference whether or not using the Customer's login Information, including without limitation any and all documents, articles, transcripts, audio clips, caricatures, computer programs, designs, icons, illustrations, images, multimedia, photographs, sounds, text, video clips, Personal Data, identities and likeness of “Persons” (defined herein), recordings, and any other spoken, written or electronic expressions or works. The definition does not include signalling data created by Pexip.

“Intellectual Property Rights”

Patents, inventions (patentable or not), copyrights, design, trademarks, technical specifications, database rights, data, technical specifications, source codes and object codes of software programs and parts thereof, trade secrets, data and any documentation related to such rights and the know-how and goodwill thereto, and any other intangible assets existing or subsisting, whether registered or not, anywhere in the world.

"Pexip"

Pexip AS including all its subsidiaries and parent companies.

"Participant"

Any natural person who participates in a Conference or otherwise use Pexip Deliverables.

"Party"/"Parties"

Pexip and/or the Customer.

"Person"

Any individual natural person or legal entity.

"Personal Data"

Any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

"Pexip Certified Partner"

Any official partner and/or reseller of the Pexip Deliverables, certified by Pexip.

"Representative"

A natural person acting on behalf of Customer, including any employee, independent contractor, consultant, invitee or agent of such individual or entity, and any other representative of the Customer.

"Site"

The internet domain “https://pexip.com”, any sub-domains thereof and/or any successor websites and/or other websites owned and/or controlled by Pexip.

"Use"

Uploading, expressing, sharing, processing, dissemination, transmission, disclosure or other use of Content.

3. The customer’s representatives

The Customer is fully responsible and liable for all of its Representatives using Pexip Deliverables or otherwise participating in a Conference.

4.1  Responsibility for and reliance upon the Content

All Content in the Pexip Deliverables is provided by the participants in the Conference or user of the Pexip Deliverables in question and is hence the responsibility of each customer or user as the case may be.

The Customer acknowledges it is solely responsible for the Customer’s Content and that any reliance upon any Content (whether provided by the Customer or others) shall be at the Customer’s sole risk.

Pexip does not verify, represent or endorse the correctness, accuracy or reliability of any Content. Pexip expressly waives any and all liability for the Content or Use thereof in or in connection with Pexip Deliverables.

4.2. Customer warranties related to the Content

The Customer hereby warrants and represents that:

• All Content Used in or in relation to the Pexip Deliverables complies with all applicable laws and regulations and is consistent with all third party's rights.
• The Customer will not, and warrants that its Representatives will not publish, post, upload, record, link to, or otherwise distribute or transmit any Content that:
  1. Infringes or violates, or would infringe or violate, any copyright, patent, trademark, service mark, trade name, trade secret, domain name or other intellectual property or proprietary right of Pexip or any third party;
  2. Infringes or violates any rights of publicity or privacy of any third party;
  3. Promotes, solicits, comprises or contains abusive, defamatory, excessively violent, harassing, inappropriate, indecent, lascivious, lewd, obscene, pornographic, profane, threatening, vulgar or otherwise inappropriate, objectionable or unlawful material;
  4. Contains corrupted files, trojan horses, viruses, worms or any other similar data, programs or software that may damage, expropriate, intercept or interfere with any data, information, property or system of any third party or that may damage or interfere with the Pexip Deliverables; or
  5. Attempts to mislead others about the Customer's or any of its representatives' identity or the origin of any message or other communication, impersonates or otherwise misrepresents the Company's or any of its representatives' affiliation with Pexip or any other third party, or is otherwise false or misleading.

4.3.  Customer responsibilities

The Customer shall take all measures required to hinder and prevent illegal Use of Content, including but not limited to shutting down any Conferences hosted by the Customer containing unlawful Content or any other Content not permitted under these Terms. If any such Content is submitted by one or more of the Customer's Representatives, the Customer shall immediately notify Pexip in writing about this. Pexip may require Customer to remove such Representatives' access to the Pexip Deliverables.

4.4.   Pexip’s use of the Content

Pexip processes the Content only to the extent necessary to make the Pexip Deliverables available to the Participants.

4.5.  Recording of Conferences

The Pexip Deliverables may allow the Participants to record Content.

The Customer is solely and fully responsible for any and all Content that the Participants Uses during a Conference or by other use of Pexip Deliverables. If required by law, the Customer shall obtain necessary consent from each individual Participant prior to the intercepting, monitoring and/or recording of any communication.

The Customer acknowledges that the Customer’s Content may be Used by other Participants that the Customer interacts with or those who the Customer and the Customer's Representatives otherwise communicates with.

6. Pexip Deliverables

6.1.  Ownership

The Pexip Deliverables are licensed to the Customer solely for the Customer's use under and in accordance with the terms and conditions of these Terms and the license granted herein. Pexip and/or its licensors retains all rights, titles, and interests relating to or embodied in the Pexip Deliverables, including without limitation all intellectual property rights, technology, know-how, documentation, trade secrets, derivative works and copies relating thereto.

If the Customer uses the optional integration with YouTube or FaceBook Live, or other similar integrations with a third party, for Pexip live events & recordings, the applicable terms of service of that third party ("Applicable Third-Party Terms") will apply for the services and/or products provided by such third party. The Customer agrees to be bound by and comply with all Applicable Third-Party Terms, and Pexip is under no circumstances responsible for the Customer's noncompliance with such Applicable Third-Party Terms. The Customer will hold Pexip harmless against all claims, losses and damages resulting from the Customer's breach of any Applicable Third-Party Terms.

6.2  Permitted use

The Customer is granted a time-limited, non-exclusive, non-transferable license to download, access and/or use (as applicable) the Pexip Deliverables in and as a part of its own business operations and in accordance with and during the term of these Terms.

6.3  Restrictions on use and compliance with applicable laws

Without limitation, the Customer agrees not to engage in any of the following unauthorized use without Pexip's explicit permission:

• Decompile, disassemble, reverse engineer, translate or otherwise attempt to learn the source code or technological know-how of any component of the Pexip Deliverables.
• Create, resell, assign, copy, deliver, distribute, lease, loan, fy, pledge, rent, sell, sublicense, timeshare, create derivative works of or otherwise transfer, directly or indirectly, any portion of the Pexip Deliverables or any rights thereto.
• Attempt to gain unauthorized access to the Pexip Deliverables or any information included therein, or to other accounts, computer systems or networks connected to the Pexip Deliverables, whether through hacking, password mining or any other means.
• Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations, or labels of the origin or source of software or other material contained in a file that is uploaded.
• Violate the rights of Pexip or any third party, including without limitation abuse, defame, defraud, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of Pexip or any third party.
• Access and/or use the Pexip Deliverable or any type of software or equipment that could in any manner damage, disable, overburden, impair or otherwise interfere with or disrupt the Pexip Deliverables, Pexip servers and/or any network connected to the Pexip Deliverables.

The Customer shall comply with all applicable laws, including applicable local, state, national and international laws and regulations. The Customer is responsible for the Customer’s familiarity and compliance with any and all laws that may prohibit the Customer from accessing or using any part or all of the Pexip Deliverables or from participating in any Conference or that may limit or regulate such participation or use.

The Customer acknowledges that the Content may be subject to import and export laws and regulations, and various regulatory agencies. Pexip shall not in any event be responsible or liable for the Customer’s noncompliance with applicable laws and regulations in connection with the Customer’s use of the Pexip Deliverables. None of the underlying information or technology derived from or related to the Pexip Deliverables shall be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which Norway, EU, UK or the U.S. has embargoed goods or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s or State Department’s Table of Denial Orders.

Pexip shall comply with all applicable laws where Pexip conducts its business, including applicable local, state, national and international laws and regulations.

6.4. Use in breach of the Terms

If the Customers uses the Pexip Deliverables in breach of these Terms, Pexip shall have the right to remove the Customer's access to the Pexip Deliverables and terminate the Terms with immediate effect.

6.5.  Payment of third-party fees and charges

The Customer's ability to access and use the Pexip Deliverables may require the payment of third-party fees and charges (including but not limited to fees and charges such as telephone toll charges, airtime charges or internet service provider fees and/or fees or taxes imposed on internet services, including any sales or use taxes by governmental agencies). Pexip shall not be responsible for paying any such fees, charges or taxes.

6.6. Necessary third-party equipment and software

The Customer acknowledges and agrees that the Customer’s use of the Pexip Deliverables may require certain third-party equipment and/or software. Pexip shall not provide or be responsible for in any way for such equipment and/or software unless otherwise agreed between the Parties.

6.7.   Documentation

Unless otherwise agreed, necessary documentation related to the Pexip Deliverables is available at www.pexip.com.

6.8  Demonstration of the Pexip Deliverables

If the Customer registers for access to a free demonstration or proof of concept for Pexip Deliverables, these Terms will also govern that free trial. Upon registration, Pexip will make one or more Pexip Deliverables available to the Customer on a trial basis free of charge until the earlier of (i) the end of the free trial period for which the Customer has registered to use the applicable Pexip Deliverables or (ii) the start date of any purchased Pexip Deliverables ordered by the Customer.

Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.

Any data the customer enters into or uploads to the Pexip Deliverables, and any customizations made by or for the Customer during the free trial period, will be permanently lost unless the Customer purchases a subscription to the same (or an upgraded version).

During the free trial, the Pexip Deliverables are provided “as-is” without any warranty, and Pexip assumes no liability for any costs or losses accrued by the Customer in connection with its use and/or access to the Pexip Deliverables.

7. The Pexip Brand and Marks

7.1. The ownership of Pexip brands and marks

All brand names, product names, trade names, domain names, graphics, logos, service marks and trademarks relating to the Pexip Deliverables (regardless of such Marks are currently being used) (collectively, the “Marks”) are the property of Pexip or its Affiliates.

Pexip and its Affiliates retain all right, title and interest in, and to, the Marks, including all intellectual property rights. The Customer may not remove from, add to, or alter any portion of the Marks, copyright notices or other proprietary rights or markings associated with the Pexip Deliverables. The Customer is prohibited from using any of the Marks for any purpose not explicitly granted under these Terms, without Pexip’s prior express written consent.

7.2  Links to third party sites

The Site may include links that will take the Customer to other websites (collectively, “Linked Sites”). The Linked Sites are provided by Pexip as a convenience, and neither Pexip nor its Affiliates are, and under no circumstances shall be, responsible for the availability or any content, product or service of any Linked Sites.

8. Payment

8.1    Payment to Partner

The Customer is obligated to pay the fees for the Pexip Deliverables to Pexip's Certified Partner according to what is agreed in between the Customer and the Pexip Certified Partner.

8.2    Overconsumption

Pexip retains the right to investigate instances where the Customer may be oversubscribing or exceeding the agreed usage levels or license entitlement for the Deliverables (“Overconsumption”). Pexip reserves the right to request documentation for usage such as license count validation eg. via screen shot or similar documentation. Pexip reserves the authority to notify both the Customer and the Pexip Certified Partner regarding any unpaid Overconsumption. In the event that such overconsumption remains unresolved after 30-day period after a second written notification, Pexip reserves the right to temporarily suspend the provision of Customer Deliverables until the matter is rectified or Pexip may require payment for the Overconsumption. Minor variations in volume, constituting less than 5% or arising from accidental oversight, will not trigger suspension of services.

9. Intellectual property infringement

9.1 Customer indemnification

The Customer shall indemnify and hold Pexip harmless against all damages, claims, costs, losses and expenses caused by a third party claiming that the Content including any additional data, information or other Intellectual Property Rights belonging to or licensed by the Customer from a third party and the Use thereof infringe third-party Intellectual Property Rights.

9.2  Pexip indemnification

Pexip shall indemnify and hold Customer harmless against direct damages to the extent a court of competent jurisdiction finds that the Pexip Deliverables or the use thereof infringe a third-party Intellectual Property Right.

9.3  Processing of allegations on breach of third party's rights

The responsible Party's (the "Responsible Party") obligation to indemnify the other Party under clauses 9.1 and 9.2 is reliant upon that:

• the other Party promptly and no later than 10 business days after receiving notice informs the Responsible Party in writing of any such claim, demand, action or suit; and
• the Responsible Party is given control over the defence or settlement thereof and that the other Party cooperates in the defence or settlement.

The Responsible Party agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and with due care to the other Party.

9.4  Pexip's options in the event of infringement and limitation of liability

If a claim, demand, suit or action alleging infringement is brought or Pexip believes one may be brought, Pexip shall have the option at its expense to:

• modify the Pexip Deliverables to avoid the allegation of infringement, while at the same time maintaining substantial compliance with these Terms;
• obtain for the Customer, at no cost to the Customer, a right to continue utilisation of the Pexip Deliverables in accordance with these Terms free of any liability or restriction; or
• if neither of the previous options are commercially feasible in Pexip's reasonable opinion, Pexip may terminate these Terms immediately upon notice to the Customer and shall in case of termination repay any prepaid fees related to provision or use of the Pexip Deliverables to be received or used by the Customer after the expiration or the termination of these Terms takes effect.

Notwithstanding the above, Pexip shall have no responsibility for claims arising from:

• modifications of the Pexip Deliverables by the Customer or any third party;
• combination or use of the Pexip Deliverables with the Customer or third-party hardware or software not supplied by Pexip if such claim would not have arisen for such combinations or use;
• Pexip’s modification of the Pexip Deliverables in compliance with written specifications provided by the Customer;
• use of other than the latest version of the Pexip Deliverables provided to the Customer by Pexip if the use of the latest version would have avoided the infringement; or
• use of the Pexip Deliverables outside the scope or in breach of these Terms.

10. Disclaimer of warranties

The Pexip Deliverables are provided “as is” and may include technical mistakes, interruptions, inaccuracies and errors. Except for the warranties provided by Pexip under these Terms, Pexip hereby, to the fullest extent permitted by law, disclaims all other warranties of any kind regarding the Pexip Deliverables, whether express, implied or statutory, including without limitation any warranty of merchantability, fitness for any particular purpose, compatibility, workmanlike effort, accuracy, availability, and/or non-negligent performance.

To the maximum extent permitted by applicable law, the Parties agree that consumer protection laws do not apply to the Customer’s use of the Pexip Deliverables or to any of the transactions contemplated by and consummated pursuant to these Terms.

11. Term and Termination of Convenience

These Terms will remain in force (and may not be terminated for convenience) until the Customer Agreement between the Pexip Certified Partner and the Customer, under which the Pexip Deliverables are provided and paid for, is terminated or otherwise expires. Upon such termination or expiration, these Terms will terminate automatically unless the Parties agrees otherwise in writing.

12. Breach of Terms

12.1  General

Non-compliance with Customer's obligations under these Terms shall constitute a breach of the said Terms by Customer.

If the Customer is in breach of its obligations according to these Terms, the Customer shall, to the extent such breach is capable of remedy, use all commercially reasonable efforts to remedy the breach without undue delay. The breach shall be remedied at the cost of the Customer.

The Customer shall notify Pexip without undue delay of any breach of these Terms on the part of Pexip that the Customer is or should have been aware of. Failing to give such notice without undue delay shall involve that the Customer loses its right to compensation for the loss suffered by the breach included in the delayed notice.

12.2  Material breach

A breach of the Terms shall be deemed as a material breach if the violating Party has not remedied the breach within a reasonable amount of time after receipt of written notice from the other Party specifying the breach and that these Terms will be terminated if the breach has not been remedied within the same amount of time after reception of the notice.

Breaches of the security requirements or other actions or omissions by the Customer that may impose a risk for hacking or piracy will always constitute a material breach of the Terms.

12.3  Termination due to material breach

These Terms may be terminated with immediate effect by either Party in the following events:

• Upon material breach of the Terms by the other Party.
• In the event of a voluntary filing of a petition or action for bankruptcy or insolvency or the entry of a final judgment or other sustaining petition(s) or action(s) taken by the other Party's creditors, or the liquidation, dissolution or winding up of that Party.

13. Limitations of Liability

13.1  Use of the Pexip Deliverables

Pexip shall not be liable for any damages or losses resulting from the Customer's inability to use the Pexip Deliverables or to access data, information or Content for any reason, including any interruptions or delays.

13.2  The use of Content by third parties

Neither Pexip nor any of its Affiliates shall be liable for any third party’s use of the Customer’s Content or Personal Data in a Conference or otherwise.

13.3  Third party providers

Pexip and its Affiliates offer no guarantees and assumes no responsibility or liability of any kind with respect to services provided by third parties, including without limitation any liability resulting from incompatibility between the Pexip Deliverables and any third-party services. The Customer agrees not to hold Pexip or any Affiliate responsible or liable for any matter caused by or related to services provided by any third-party.

13.4  Damages

Unless otherwise stated in these Terms, neither Party shall be liable to the other Party for any indirect, special, incidental, punitive or consequential damages.

Pexip's maximum liability arising out of or in connection with these Terms shall in no event exceed Pexip's earnings from the Customer for the last 3 months preceding the event giving rise to the Customer's claim.

13.5  Indemnification by the Customer

Notwithstanding the above, the Customer hereby agrees to defend, indemnify and hold Pexip and its Affiliates harmless from and against any and all claims, liabilities, damages and costs (including without limitation fees, costs and expenses of attorneys) arising out of or related to:

• the Customer's use of the Pexip Deliverables in breach of the Terms;
• any unauthorised use of the Customer's login information provided that such use is caused by or otherwise resulting from the Customer's negligence;
• the Customer's noncompliance with applicable law; and
• any recordings made by the Customer of any other user of the Pexip Deliverables.

14. Effects of Termination

In the event of termination or expiration of these Terms for whatever reason, the Customer’s right to use the Pexip Deliverables shall cease and Pexip shall not provide any notifications or updates related to the Pexip Deliverables. The Customer shall upon the expiration of these Terms immediately terminate the use of the Pexip Deliverables and shall return any documentation provided by Pexip in relation to the Pexip Deliverables to Pexip or, at Pexip’s option, destroy such documentation and if requested, provide Pexip with an affidavit confirming destruction of the documentation.

The Customer shall immediately make any payments due to the Pexip Certified Partner and/or Pexip.

15. Force Majeure

If performance of the Terms is prevented in whole or in part, or is materially hindered by circumstances outside the Parties' control, the Parties' obligations (except for the obligations to make payments when due hereunder) shall be suspended to the extent that the circumstances are relevant and for as long as the circumstances persist. Such circumstances include, but are not limited to, strikes, natural disasters, power loss, internet downtime, lockouts and cyber-attacks or the equivalent caused by any malicious code, tools or device that are designed to disable or disrupt systems, provided that the Party has installed and maintained industry standard information security defence to protect against foreseeable cyber-attacks as well as consequences of pandemics including measures laid down by public governmental bodies or corporate policies to mitigate consequences of or health risk related to pandemics at any time.

Each of the Parties may terminate the Terms by giving one month’s written notice if the force majeure situation lasts for more than 90 days or makes it particularly burdensome for the Party in question to meet its obligations under the Terms.

16. Confidentiality

17. Amendments

Pexip may, at any time, amend or modify the provisions of these Terms. If an amendment made by Pexip is materially disadvantageous to the Customer, the Customer may terminate this Terms by giving written notice to Pexip Certified Partner and Pexip. Continued use of the Pexip Deliverables after a revised version of these Terms is posted at the Site will be conditional upon the version of the Terms that is in effect at the time of the use.

18. Assigment of Rights and Obligations

The Parties may not without prior written consent of the other Party transfer any rights and/or obligations under these Terms to third parties. Pexip may transfer the rights and obligations under these Terms to its Affiliates, provided that such transfer does not have an adverse effect on the performance received by the Customer under these Terms.  For the avoidance of doubt, the occurrence of a change of control event in Pexip shall not be subject to notification or consent requirements.

19. End of life of services

Nothing in these Terms prevents Pexip from adjusting the mixture of Pexip Services it offers, including discontinuing the sale and provision of specific Pexip Services.

20. Severability

If any provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part, such whole or partial provision shall be stricken from these Terms and not affect the legality, enforceability, or validity of the remainder of these Terms.  Such stricken provision shall also be replaced, with a legal, enforceable, and valid provision that is as similar to the tenor of the stricken provision as possible. The Parties shall negotiate in good faith, a substitute, valid and enforceable provision which most nearly effects the Parties’ intent in entering into these Terms.

21. No agency etc.

No agency, partnership, joint venture, or employment is created as a result of these Terms and the Customer does not have any authority of any kind to bind Pexip in any respect whatsoever.

22. No Waiver

A Party's failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision unless expressly agreed on writing between the Parties. 

23. Survival

Any rights, obligations, liabilities or duties of the Parties under these Terms that are intended to survive the termination or expiration of these Terms, shall survive the termination or expiration of these Terms, including the Parties’ respective rights, obligations, liabilities and duties (and any limitations thereon) set forth in clauses 10, 13 and 16.

24. Governing Law and Disputes

24.1  General

These Terms are governed and construed in accordance with the laws of Norway. 

Any dispute, controversy or claim arising out of or in connection with these Terms shall be sought settled through negotiations in good faith. Any disputes regarding the understanding, implementation and execution of the Terms that the Parties are not able to resolve through negotiations in good faith, shall be resolved by arbitration in accordance with the rules in the Norwegian Arbitration Act. The legal venue shall be Oslo. The proceedings shall be in English.

The award of the Court of Arbitration shall be final and binding and not subject to appeal. The proceedings as well as the award shall be treated as confidential information pursuant to clause 16 above.

24.2  US Customers

The following provisions shall apply to Customers including corporations that are incorporated in, and US public sector entities operating within the United States of America:

Pexip Inc., a corporation incorporated under the laws of the State of Delaware, shall be the contracting Party and these Terms will be governed by and construed in accordance with the substantive laws of the State of New York, without regard to its conflicts of laws provisions. Both Parties expressly consent to the jurisdiction of the state and federal courts located in New York State. The Parties further agree that the exclusive venue for the resolution of any dispute relating to the subject matter of these Terms will be in the state and federal courts located in New York County, New York.

Part 2 – Pexip Service

1  Scope

This Part 2 of the Terms contains specific terms for the Pexip Services.

1 Scope

This Part 3 of the Terms contains specific terms for the Pexip Self-Hosted.