Terms and Conditions
This Single Transaction Reseller Agreement (this “Agreement”) is between Vectara Inc., a Delaware corporation, with an address at 395 Page Mill Rd #275, Palo Alto, CA 94306 (“Company”), and Reseller, and shall apply to Reseller’s use of Vectara’s Software-as-a-Service based Serverless RAG platform for GenAI powered enterprise applications (the “Vectara Service”) ordered by Reseller pursuant to one or more ordering documents entered into between Reseller and Vectara or online orders made by Reseller 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 Services 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. “Reseller” means the company or other legal entity that entered into an Order Form. You represent that you have the authority to bind Reseller 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 Services.
1. Appointment
Subject to the terms of this Agreement, Company hereby appoints Reseller for the Term as a non-exclusive reseller of the Vectara Service only within the Territory. Reseller may resell the Vectara Service only to a single end user customer located and taking delivery of the Vectara Service within the Territory (“End Users”); Reseller may not appoint sub-resellers. Prior to the delivery of the Vectara Service to the selected End User, Reseller will register such End User with Company, supplying Company all requested information regarding the End User (e.g., company name, contact information, order details and the like and Reseller shall require the End User to agree to Company’s Terms of Service (available at https://vectara.com/legal/scale-plan-customer-agreement). Nothing in this Agreement shall be construed as limiting in any manner Company’s marketing or distribution activities or its appointment of other dealers, distributors, licensees or agents. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to host and provide the Vectara Service to End Users in accordance with its Terms of Service. For the avoidance of doubt, Reseller is permitted to register a single End User under this Agreement upon Company’s written consent.
2. License Restrictions
Reseller will not (and will not allow any third party to): (a) reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of any Vectara Service; (ii) modify, translate, or otherwise create derivative works of Vectara Service; or (iii) allow the removal, alteration, covering or obscuring or of any notice or mark that appears on the Vectara Service, on any copies or media.
3. Reseller Obligations
Reseller represents, warrants and agrees that: (a) Reseller will use its best efforts during the Term to market and sell the Vectara Service in the Territory in a manner that reflects favorably upon Company and in compliance with all applicable laws and regulations (including, without limitation, export control laws and the Foreign Corrupt Practices Act); (b) Reseller will keep accurate records and accounts with respect to Vectara Service sold, (c) Reseller agrees to cooperate and assist Company in bringing legal action against any End User for any activity in violation of Company’s Terms of Service; and (e) Reseller will not issue any press release or make any other public statement regarding the parties’ relationship absent Company’s prior written approval.
4. Fees and Payment Terms
With respect to the Vectara Service, Reseller will pay Company in accordance with the pricing as set forth on the Order Form. Reseller will pay all amounts due in U.S. Dollars (USD) in advance (prior to the delivery of Vectara Service). Invoicing will be annually in advance with Net30 payment terms with the initial invoice being released to Reseller upon receipt of an executed order. Company may, at its discretion, change end user list prices for Vectara Service at any time with thirty (30) days’ notice to Reseller. Reseller will pay all applicable shipping charges, duties, assessments, taxes (exclusive of taxes on Company’s net income) and the like. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law.
5. Audits
Company or its agents may, with fifteen (15) days’ notice, audit Reseller’s records and inspect Reseller’s facilities to verify Reseller’s compliance with the provisions of this Agreement. If an audit indicates an underpayment of five percent (5%) or more of any amounts due hereunder or other non-monetary noncompliance, Reseller will promptly reimburse the Company for the reasonable cost of the audit. Such rights will remain in effect through a period ending one year from the termination of this Agreement.
6. Proprietary Rights and Trademarks
As between the parties, Company and/or its suppliers or licensors have all right, title and interest in and to the Vectara Service, and all copies and derivative works thereof. Reseller will use Company’s then-current names, marks, logos, and other identifiers for the Vectara Service (“Trademarks”) and Company’s designated intellectual property related notices on or in Reseller’s advertising and promotional for such Vectara Service during the Term; provided that Reseller will: (a) only use Trademarks in the form and manner, and in accordance with the usage guidelines that Company specifically prescribes; and (b) upon termination of this Agreement for any reason, immediately cease all use of the Trademarks. If Company determines that Reseller is using or displaying any Trademark in a manner that is or may be detrimental to Company’s interest, Company may issue reasonable instructions to Reseller concerning the manner, if any, in which Reseller may continue to use such Trademark. Reseller shall promptly comply with such instructions or cease the use or display of such Trademarks. Reseller will not use, register or take other action with respect to any Trademark used anywhere in the world by Company, except to the extent authorized in writing by Company in advance.
7. Feedback
Reseller may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Vectara Service. Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality, and will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit the Feedback in connection with its products and services.
8. Confidential Information
All code, inventions, algorithms, know-how, ideas, and all business, technical and financial information disclosed by Company to Reseller are and remain the confidential property of Company (“Confidential Information”). Except as expressly, Reseller will hold in confidence and not use or disclose any Confidential Information. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of Reseller, (ii) Reseller otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by employees of Reseller with no knowledge of or access to such information. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that remedies at law for a breach of the obligations under this Section will be inadequate and that Company will be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) in addition to any other remedies.
9. Term and Termination
This Agreement will commence on the Effective Date and will expire on the last day of the Term (as set forth on the Order Form) unless earlier terminated as set forth herein. Either party may terminate this Agreement in the event of a breach of this Agreement by the other party that is not cured within thirty (30) days (or ten (10) days in the event of non-payment) after the breaching party receives notice of such breach. In addition, Company may terminate this Agreement immediately (a) in the case of a breach by Reseller of Section 3, 4, 7 or 9; or (b) upon the commencement of any bankruptcy proceeding (or other insolvency proceeding) of Reseller or the dissolution or change of control of Reseller. Further, either party may terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses.
10. Effect of Termination
Upon expiration or termination of this Agreement for any reason: (a) all licenses and other rights granted to Reseller under this Agreement will terminate; (b) Reseller will return all copies of Confidential Information, and Reseller will return all catalogs, literature and other Company materials in its possession or control, or at Company’s option, destroy such materials; (c) all outstanding obligations or commitments of Reseller to pay amounts to Company will become immediately due and payable; and (d) for any order of Vectara Service that are in place and not delivered at the time of termination, Company will have the option to cancel or fulfill the order. Sections 2 through 14 of this Agreement will survive any expiration or termination of this Agreement. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
11. Warranty and Disclaimer
Company warrants to Reseller that (a) the Vectara Service will substantially conform with the specifications for the Vectara Service provided by the Company to Reseller, and (b) Company will not knowingly include, in any Software provided to Reseller for further distribution to End Users hereunder, any computer code that intentionally disrupt, disable or damage the operation of a network or computer system or any component thereof. In the event of a breach of the foregoing warranties, Company’s sole obligation, and Reseller’s sole remedy, will be for Company to use commercially reasonable efforts to correct the Vectara Service. If Company cannot, or determines that it is not practical to, correct the Vectara Service, Company may terminate the affected Vectara Service and the price paid for the affected Vectara Service by Reseller will be refunded to Reseller.] EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICES ARE BUG FREE OR THAT THEIR USE WILL BE UNINTERRUPTED. Reseller will make no representation or warranty concerning the quality, performance or other characteristics of Vectara Service. Reseller is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its activities, or those of its employees or agents, including satisfaction of its customers, and Reseller will be responsible for and indemnify Company against all claims, damages, settlements, expenses and attorneys’ fees incurred by Company with respect to any of the foregoing.
12. Indemnification
12.1: Company will defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against Reseller by any third party in the United States to the extent such Claim is based upon a claim that the Vectara Service infringe such third party’s patents in the United States, or copyrights or trade secrets, and Company shall pay all costs and damages finally awarded against Reseller by a court of competent jurisdiction as a result of any such Claim; provided, however, that Reseller (i) promptly notifies Company in writing of such Claim; (ii) promptly gives Company the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Company’s own choosing (provided that Reseller shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (iii) gives assistance and full cooperation for the defense of same. If the Vectara Service are, or in Company’s opinion, might be held to infringe as set forth above, Company may, at its option, (a) replace or modify the Vectara Service so as to avoid infringement, (b) procure the right for Reseller to continue to resell the Vectara Service or (c) terminate this Agreement without liability along with all then-existing subscriptions to the Vectara Service; provided, that Company will be obligated to continue to indemnify Reseller under this Section 12. Notwithstanding the foregoing, Company will have no obligation under this Section or otherwise with respect to any infringement claim based upon (A) any unauthorized use of the Vectara Service or any breach of this Agreement by Reseller, (B) any combination of the Vectara Service with other products, equipment, software, uses or data, to the extent such claim would not have arisen absent such combination, (C) any modification of the Vectara Service by any person other than Company or its authorized agents or contractors or (D) any activity after Company has provided Reseller with a work around or modification that would have avoided such issue.
12.2: Reseller will defend at its expense any Claim brought against Company to the extent such Claim arises out of (a) a breach of any obligation of Reseller set forth herein or (b) any marketing, use or other exploitation of the Service (except to the extent covered by Company’s indemnity obligations in Section 12.1), and Reseller shall pay all costs and damages finally awarded against Company by a court of competent jurisdiction as a result of any such Claim; provided, however, that Company (i) promptly notifies Reseller in writing of such Claim; (ii) promptly gives Reseller the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Reseller’s own choosing (provided that Company shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (iii) gives assistance and full cooperation for the defense of same.
13. Limitation of Liability
EXCEPT FOR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER 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 A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING (i)RESELLER’S PAYMENT OBLIGATIONS, (ii)BREACH OF CONFIDENTIALITY OR (iii)INDEMNIFICATION OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY RESELLER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
14. Miscellaneous
Company reserves the right to change or discontinue any Vectara Service at any time, subject to thirty (30) days’ notice for discontinuation or major changes. This Agreement is not assignable or transferable by Reseller without the prior written consent of Company; any attempt to do so will be null and void. This Agreement is assignable by Company. The parties agree that they are each independent contractors and nothing in this Agreement will be deemed to establish a joint venture, partnership, agency or employment relationship between the parties. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder will be in writing via certified mail, return receipt requested to a party at the addresses first set forth herein. Any waivers or amendments will be effective only if made in writing. Any different or additional terms of any purchase order, confirmation, or similar form, even if signed by the parties after the date hereof, will have no force or effect. If any provision of this Agreement is unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement will be construed under the laws of the State of California, without regard to conflicts of laws provisions thereof. Unless waived by Company in a particular instance, the exclusive venue for any action or proceeding arising under this Agreement shall be the state and federal courts in San Francisco and each party hereby consents to the jurisdiction thereof. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. In any action relating to the subject matter of this Agreement, the prevailing party will be entitled to recover reasonable legal fees and related costs.
