Terms and Conditions
1. This Vectara Online Customer Agreement (SaaS) (this “Agreement”) is entered into by and between Vectara, Inc., a Delaware corporation (“Vectara”), and Customer, and shall apply to Customer’s use of Vectara’s Software as a Service machine learning-powered text search (“Vectara Service”) ordered by Customer pursuant to one or more ordering documents entered into between Customer and Vectara or online orders made by Customer that set forth the specific Vectara Service and pricing thereof, and the applicable subscription term thereof (“Order Form“). This Agreement and such Order Forms, which are hereby incorporated into, supplement and form a part of this Agreement, represent the parties’ entire understanding regarding the Vectara Service and shall control over any different or additional terms of any purchase order or other non- Vectara ordering document, and no terms included in any such purchase order or other non-Vectara ordering document shall apply to the Vectara Service. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control. “Customer” means the company or other legal entity that entered into an Order Form. You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Vectara Service
Definitions
2.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Vectara for the Vectara Service.
“Non-Vectara Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Vectara Service (other than third party data hosting services used by Vectara). For clarity, the Vectara Service excludes non-Vectara Services.
3. Vectara Product
3.1 Provision of Vectara Service. Subject to the terms and conditions of this Agreement, Vectara will make the Vectara Service available to Customer pursuant to this Agreement, and hereby grants Customer a non-exclusive right to access and use the Vectara Service.
3.2 Data Security.
(a) Vectara will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Vectara Service (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
(b) To the extent that Vectara processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Vectara Service, the parties will execute a Data Processing Addendum (“DPA“), and such DPA is hereby deemed incorporated herein by reference and can be found here: vectara.com/legal/data-processing-addendum
3.3 Customer Responsibilities.
(a) Customer acknowledges that Vectara’s provision of the Vectara Service is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the Vectara Service under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Vectara Service and notify Vectara promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Vectara Service and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Vectara Service, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Vectara will have no liability for such failure (including under any service level agreement).
3.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Vectara and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
4. Fees
4.1 Fees. To the extent the Vectara Service or any portion thereof is made available for any fee, Customer will be required to select a payment plan and provide Vectara information regarding Customer’s credit card or other payment instrument. Customer represent and warrant to Vectara that such information is true and that you are authorized to use the payment instrument. Customer will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Customer agrees to pay Vectara the amount that is specified in the payment plan in accordance with the terms of such plan and this Agreement. Customer hereby authorizes Vectara to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until Customer terminates its account, and Customer further agrees to pay any charges so incurred. If Customer disputes any charges you must let Vectara know within sixty (60) days. We reserve the right to change Vectara’s prices. If Vectara does change prices, Vectara will provide notice of the change on the website or in email to Customer, at Vectara’s option, at least 30 days before the change is to take effect. Customer’s continued use of the Vectara Service after the price change becomes effective constitutes Customer’s agreement to pay the changed amount. Vectara may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Vectara thirty (30) days after the mailing date of the invoice, or the Vectara Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with the Vectara Services other than U.S. taxes based on Vectara’s net income.
4.2 Late Payment. Vectara may suspend access to the Vectara Service immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Vectara has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Vectara.
4.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Vectara. Customer will not withhold any Taxes from any amounts due to Vectara.
5. Proprietary Rights
5.1 Proprietary Rights. As between the parties, Vectara exclusively owns all right, title and interest in and to the Vectara Service (which includes vectorized representations of the Customer Data), System Data and Vectara’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Vectara Service by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Vectara regarding the Vectara Service that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Vectara Service.
5.2 Feedback. Customer may from time to time provide Vectara suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Vectara Service. Vectara will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Vectara will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.3 Product Improvement and Aggregated Statistics. Customer further agrees that Vectara has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Vectara Service and shall be free (during and after the term hereof) to (i) use such data and other information to improve Vectara’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
6. Confidentiality; Restrictions
6.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Vectara Service; (b) attempt to probe, scan or test the vulnerability of the Vectara Service, breach the security or authentication measures of the Vectara Service without proper authorization or wilfully render any part of the Vectara Service unusable; (c) use or access the Vectara Service to develop a product or service that is competitive with Vectara’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Vectara Service or otherwise offer the Vectara Service on a standalone basis; or (e) otherwise use the Vectara Service in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
7. Warranties and Disclaimers
7.1 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Vectara to use the same as contemplated hereunder.
7.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE Vectara SERVICE IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S SEARCH SYSTEMS AND PROCESSES. Vectara DOES NOT REPRESENT OR WARRANT THAT THE Vectara SERVICE WILL BE ERROR-FREE [AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE Vectara SERVICE DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL]. Vectara IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-Vectara SERVICES, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
7.3 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH Vectara WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY Vectara. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. Vectara DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR Vectara MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
8. Indemnification
8.1 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Vectara from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, or your other access, contribution to, use or misuse of the Vectara Service. Vectara shall provide notice to Customer of any such claim, suit or demand. Vectara reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, Customer agrees to cooperate with any reasonable requests assisting Vectara’s defense of such matter.
9. Limitation of Liability
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL Vectara BE LIABLE TO THE CUSTOMER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF CUSTOMER HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
10. Termination
10.1 Term. The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
10.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
10.3 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.
11. General
11.1 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
11.2 Amendment; Waiver. Vectara reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
11.3 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
11.4 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
11.5 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
11.6 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer must be sent to the respective address set forth in the signature blocks listed on the Customer’s applicable Order Form, or such other email address provided by Customer when Customer creates its Vectara account. Notices to Vectara must be sent to the following::
Vectara, Inc.7659 Orange Blossom Drive Cupertino, CA 95014
11.7 Entire Agreement. This Agreement comprises the entire agreement between Customer and Vectara with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Vectara, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
11.8 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
11.9 Government Terms. Vectara provides the Vectara Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Vectara Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Vectara Service was developed fully at private expense.
11.10 Interpretation. For purposes hereof, “including” means “including without limitation”.
