THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF PRODUCTS FROM VECTRA AI, INC. (“VECTRA”).IF THIS IS A TRIAL OF VECTRA PRODUCTS, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL.BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT; OR FOR TRIAL, BY USING PRODUCTS SHIPPED FROM VECTRA, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (THE “CUSTOMER”). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, AND THEREFORE THE TERMS "YOU" OR "YOUR" SHALL REFER TO CUSTOMER AND ITS AFFILIATES AS WELL. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND NEITHER YOU NOR CUSTOMER MAY USE THE PRODUCTS.You may not access the Products if You are VECTRA’s direct competitor, except with VECTRA’s prior written consent. In addition, You may not access the Products for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.This Agreement was last updated on November 15, 2018. It is effective between You and VECTRA as of the date of Your accepting this Agreement.
“Hardware” means the VECTRA hardware products set forth in the Order.
“Product” means the VECTRA security services product(s)set forth in the Order that consist of Hardware, Software, and/or Subscriptions.
“Order” means a sales quotation or order confirmation provided by VECTRA or its authorized representative that specifies Trial Product(s) or Product(s) to be provided under this Agreement.
“Software” means the executable code version of VECTRA’s software products set forth in the Order and any updates thereto furnished by VECTRA under this Agreement.
“Subscriptions” means subscription-based Software or services provided by VECTRA to Customer for a fixed or recurring period, subject to subscription fees for each such period as set forth in the Order.
“Trial Products” mean the Products that VECTRA or its authorized representative makes available to Customer for evaluation purposes.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity which have entered into Orders.
2.1 Authorized VECTRA Resellers. For any Products acquired by Customer through an authorized VECTRA reseller, the following provisions of this Agreement shall not apply: Sections 3.1 and 4.1-4.4. While VECTRA shall remain the “licensor” for purposes of the grant of the licenses and other rights hereunder, and Customer shall remain the “licensee” for purposes of the obligations contained herein, Customer shall contract directly with the authorized VECTRA reseller for the purchase of Hardware and/or Maintenance provided by such authorized VECTRA reseller.
3.1 Purchase of Hardware. Customer agrees to purchase the Hardware set forth in the Order on the terms set forth in this Agreement. Delivery shall be FCA (Incoterms 2010) VECTRA’s point of shipment. All delivery dates are estimates.
3.2 Software License. Subject to the terms and conditions of this Agreement, VECTRA grants to Customer a nonexclusive, nontransferable, limited license to use the Software in accordance with the applicable user documentation and license keys provided by VECTRA solely for Customer’s internal use: (i) at the Customer facility authorized in the Order, (ii) during the period for which Customer has purchased a then-current license and Subscription and paid the applicable subscription fees, (iii) by Customer employees up to the number of users for whom then-current licenses and Subscriptions have been paid, and (iv) for the measured usage (“Measured Usage”) as calculated in accordance with Section 4.4, up to the service level set forth in the Order (“Service Level”).
3.3 Subscriptions. The Subscriptions will commence on the Effective Date (or other applicable start date specified in the Order) and will continue for the period set forth in the Order (the “Initial Subscription Term”). The Subscriptionswill automatically renew at the end of the Initial Subscription Term and any subsequent term for a renewal term of one (1) year (each a “Renewal Subscription Term,” and together with the Initial Subscription Term, the “Subscription Term”) unless either party has provided written notice of non-renewal of the applicable Subscriptionat least ninety (90) days prior to the end of the then-current term. All renewals are subject to payment of applicable subscriptions fees as set forth in Section 4 below.
3.4 Maintenance and Services.To the extent maintenance services are provided by VECTRA, such maintenance services are subject to Exhibit A and require payment of applicable subscription fees as set forth in Section 4 below(“Maintenance”). Installation, training and other support services may be provided if set forth in the Order, subject to the terms set forth in Exhibit A and payment of all applicable fees for such services as set forth in Section 4 below.
3.5 Evaluation. Any Trial Products may only be used for evaluation during the evaluation period set forth in the Order, not to exceed 60 days (“Evaluation Period”) or such longer period as may be approved in writing by VECTRA in its sole discretion and solely for considering whether to purchase suchTrial Products from VECTRA and not for any other purpose or any productive use.Any rights to use the Trial Products beyond the scope of this Agreement will be subject to a separate written agreement between VECTRA and Customer. VECTRA may, at its option, provide reasonable support for the Trial Products to facilitate Customer’s ability to evaluate such technology, but shall have no obligation to provide any such support. During the Evaluation Period, VECTRA may, at its sole discretion, limit certain functionality or features of the Trial Products. Customer shall discontinue all use of and return such Trial Products at the end of the Evaluation Period, unless the Customer has properly procured the applicable Trial Products and converted them to Products hereunder.NOTWITHSTANDING SECTIONS 6 (LIMITED WARRANTY) AND 7 (LIMITATION OF LIABILITY), DURING THE TRIAL THE PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VECTRA SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE PRODUCTS FOR THE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, VECTRA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) USE OF THE PRODUCTS DURING THE TRIAL PERIOD WILL MEET ANY REQUIREMENTS, AND (B) USE OF THE PRODUCTS DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO VECTRA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF ITS USE OF THE PRODUCTS DURING THE TRIAL PERIOD, AND ANY BREACH BY CUSTOMER OF THIS AGREEMENT.
3.6 Restrictions. Customer shall not (and shall not permit any third party to) (i) copy, modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software or Subscriptions to human perceivable form or attempt to discover underlying source code, algorithms or techniques, except to the extent that such activities may not be prohibited under applicable law, (ii) provide, lease, use for timeshare or service bureau purposes, or lend or otherwise allow use of any Product by or on behalf of any third party or at any location other than the Customer facility authorized in the Order, (iii) disclose any benchmarking, competitive analysis or other results obtained from any Product or use any Product or portion thereof to develop any similar item or any competitive products or services, (iv) use or remove the applicable Software or Subscriptions from any Hardware on which or for which they are provided under the applicable Order, (v) attempt to disable or circumvent any license key, encryption or other security device or mechanism used in connection with the Product, Software or Subscriptions; or (vi) remove or otherwise interfere with any portion of the Product designed to monitor Customer’s compliance with this Agreement. Customer acknowledges that Software and Subscriptions may include license keys and other features that disable use at the end of the applicable license or Subscription Term, or once the Service Level set forth in the Order is met.
3.7 Proprietary Rights. The Software and Subscriptions are licensed and not sold. VECTRA shall retain ownership of all Software and Subscriptions and all intellectual property rights relating thereto. Customer agrees that VECTRA may use and exploit without restriction any error reports, suggestions and other information provided by Customer with respect to the Products and shall own anyfixes, modifications, improvements and new versions made by VECTRA based on such information. The Products, Software, documentation and other non-public information provided by VECTRA, and the terms of this Agreement, are confidential to VECTRA and shall not be disclosed by Customer to any third party. Products may contain certain software or portions provided under terms and conditions different from this Agreement (such as open source or community source), which may be identified in a text file or about box or in a file or files referenced thereby, and Customer agrees that such software or portions will be subject to such other terms and conditions to the extent inconsistent with this Agreement or to the extent required by such other terms and conditions. All implied licenses are disclaimed and all rights not expressly granted herein are reserved to VECTRA.
3.8 Data Access. VECTRA collects personally identifiable information about Customer and its users that may be uploaded during registration or account administration and information provided during support requests (collectively, “Customer Administrative Data”). Customer Administrative Data includes, for example, name, email address, phone number, and VECTRA-generated licenses associated with a Customer’s account or email address. In the provision of the Product or a Subscription (including services related thereto), VECTRA may receive, store, process, and utilize network traffic data, including system stability data, threat detection information, user experience data, user interface data, and session and detection metadata (including packet capture data) (such data, “Customer Traffic Data” and, together with Customer Administrative Data, all such data is “Customer Data”). Without limiting the foregoing, VECTRA may automatically access, process, and retain Customer Traffic Data transferred on networks to which Customer connects any Product for purposes of product improvement, analysis, and evaluation as follows:
a. Default Access. VECTRA may monitor and access: (i) system stability data, including uptime statistics for various processes; hardware, software and network failure indicators; and backtrace and call stack data; (ii) threat detection information, including the number, type and score of each threat detection instance (based on VECTRA proprietary metrics); the attribution of each threat detection to an anonymized host; and the score for each anonymized host; (iii) anonymized user experience data, including the last login time; the frequency of logins; and User Interface clickstream data; and (iv) interface data.
b. Optional Metadata Access. As set forth in the Order or as Customer otherwise elects during the installation, configuration or use of the Products, VECTRA may (in addition to the Customer Traffic Data set forth in Section 3.8a) monitor and access non-identifying session and detection metadata, including DNS, HTTP and session data; detection details; host ID mapping data; and precursors.
c. Optional Virtual Private Network (“VPN”) Access. As set forth in the Order or as Customer otherwise elects during the installation, configuration or use of the Products, VECTRA may (in addition to the Customer Traffic Data set forth in Sections 3.8a and 3.8b) receive VPN access to Customer’s network, monitor and access packet capture data, and facilitate troubleshooting.
3.10 Data Protection by Customer. Customer represents and warrants that Customer’s use of the Products and Subscriptions complies with all applicable laws, including those related to data privacy, data security, and international communications and that Customer has obtained any and all consents necessary for VECTRA to engage in data processing under this Agreement. Submission or provision of Customer Data to VECTRA shall be at Customer’s own risk, and VECTRA assumes no responsibility or liability for receipt of such Customer Data.
3.11 Confidentiality. The Software remains a confidential trade secret of VECTRA and/or its suppliers. The Software is protected by the copyright and other intellectual property laws of the United States and international treaties. Customer acknowledges that, in the course of using the Product, including the Software, Customer may obtain or learn information relating to the Software, which may include, without limitation, information relating to the performance, reliability or stability of the Software, operation of the Software, knowhow, techniques, processes, ideas, algorithms, and software design and architecture (“Proprietary Information”). As between the parties, such Proprietary Information shall belong solely to VECTRA. During and after the term of this Agreement, Customer shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information to any third party.
4.1 Fees. Customer agrees to pay the purchase price for the Hardware, license fees and subscription fees for the Software, Subscriptions and Maintenance, renewal fees and other payments as set forth in the Order, or if not specified, at VECTRA’s then-current list price for the respective Product or service. The subscription fees may be modified by VECTRA for each renewal period by written notice to Customer at least thirty (30) days prior to the end of the thencurrent period.
4.2 Invoicing. Hardware purchases set forth under this Agreement will be invoiced by VECTRA upon shipment of such Hardware. All subscription fees and maintenance fees shall be invoiced by VECTRA and payable by Customer prior to the start of the applicable subscription and maintenance period. All other amounts will be invoiced as set forth in the Order, or if not specified, prior to commencement of the applicable licenses, services or renewals.
4.3 Payments. All payments shall be due and payable within thirty (30) days after the date of invoice by VECTRA. Without limiting any other remedies, past due amounts shall be subject to a monthly charge of one and one-half percent (1½%) per month of the unpaid balance or the maximum rate allowable by law, whichever is less.
4.4 Taxes. Amounts payable to VECTRA under this Agreement are payable in full to VECTRA without reduction for taxes (including any withholding tax) or customs duties. In addition, Customer shall be responsible for any and all taxes (including, without limitation, consumption sales, use, value-added and similar taxes) and customs duties paid or payable, however designated, levied, or based on amounts payable to VECTRA hereunder and any associated penalties, fines and attorneys’ fees, but exclusive of United States federal, state and local taxes based solely on VECTRA’s net income.
4.5 Burstable Billing. Any and all fees set forth in the Order on a “burstable billing” basis will be based on Customer’s Measured Usage during the applicable billing period. To calculate Customer’s Measured Usage, VECTRA will sample the number of active unique hosts observed by any Product every hour. At the end of any 30-day period, the samples are ordered from highest to lowest. The top five percent (5%) of the samples are discarded. The highest remaining sample (i.e., Customer’s usage at the ninety-fifth percentile (95th %)) is the Measured Usage.
This Agreement shall commence as of the Effective Date and shall continue for each Order until the end of the applicable Subscription Term, unless earlier terminated. Either party may terminate this Agreement or an applicable Order in the event of breach by the other party that is not cured within 30 days after notice (or 10 days for breach of payment or license restrictions). VECTRA may terminate this Agreement immediately upon Customer becoming insolvent or generally failing to pay its debts as they become due, or commencing or becoming subject to reorganization, insolvency or liquidation proceedings or ceasing to conduct business in the ordinary course. Upon termination, all licenses and Subscriptions shall terminate and Customer shall return and cease all use of the Software and Subscriptions. Sections 3.6, 3.7, 3.9, 3.10, 3.11, 4, 7, 8, 9 and 10, and all payment obligations accruing prior to termination, will survive.
6.1 Limited Warranty. Hardware as delivered by VECTRA will be free from material defects in materials and workmanship for a period of ninety (90) days from the date of shipment. Customer’s sole remedy, and VECTRA's exclusive liability, with respect to such warranty will be to repair, replace or provide a refund of the purchase price (at VECTRA’s option) for the defective Hardware or portion thereof, subject to return within the applicable warranty period in accordance with VECTRA’s return materials authorization (RMA) procedures and provided the defect is not due to accident; unusual physical, electrical or electromagnetic stress; neglect; modification, alteration or misuse; or failure to properly install, operate and maintain in accordance with the manufacturer's specifications. Software and Subscriptions are subject to maintenance as set forth in Exhibit A and not warranty. VECTRA does not warrant that Product will meet Customer's requirements or function uninterrupted or error free. EXCEPT AS EXPRESSLY SET FORTH ABOVE, PRODUCTS, SOFTWARE, HARDWARE, SUBSCRIPTIONS AND ANY SERVICES ARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND VECTRA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
6.2 RMA Procedures. Prior to return of any Hardware, Customer will execute and report the results of any tests or diagnostics specified by VECTRA, confirm limited warranty status with VECTRA and obtain and affix an RMA number from VECTRA prior to shipment. Returns with RMA number are to be shipped by Customer, freight pre-paid, to VECTRA’s designated return or repair facility, so that they are received within 2 weeks of obtaining the RMA number. Any Hardware found to be out-of-warranty, including any with a voided warranty, is subject to charges for processing and repair or replacement at VECTRA’s then-current rates.
IN NO EVENT SHALL VECTRA BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING COSTS OF PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VECTRA’S TOTAL LIABILITY ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES WILL NOT EXCEED THE AMOUNT PAID FOR THE RESPECTIVE PRODUCT, SOFTWARE, SUBSCRIPTION OR SERVICE TO WHICH THE CLAIM RELATES, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
This Agreement is governed by California law, excluding its choice of laws rule. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, shall be subject to exclusive jurisdiction, forum and venue of the state and federal courts in Santa Clara County, California, and the parties agree and submit to the personal and exclusive jurisdiction of these courts. This Agreement and all proceedings shall be in the English language only.
Products may not be exported without prior written consent of VECTRA. Customer warrants and hereby gives written assurance to VECTRA that Customer will comply with all U.S. and foreign export and re-export restrictions applicable to the Products, documentation and technical information provided hereunder.Company warrants that it shall comply with the Foreign Corrupt Practices Act (“FCPA”) in all dealings with, by, for or on behalf of VECTRA, and shall not offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind that would or could be construed as an illegal or corrupt practice.
This Agreement and the rights hereunder may not be assigned or otherwise transferred, either directly or indirectly, by Customer without the prior written consent of VECTRA. This is the entire Agreement between the parties relating to the subject matter hereof and no waiver or modification of the Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof.This Agreement supersedes all pre-printed terms and conditions in any purchase order or other business form submitted by Customer and any inconsistent non-pre-printed terms, all of which are rejected. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
Maintenance service as set forth in this Exhibit A (“Maintenance Services”) commence on the Effective Date (or other applicable start date specified in the Order) and will continue until the end of the Subscription Term.If Customer elects not to renew Maintenance Services or fees are not kept current, Customer may re-enroll only upon prior written consent of VECTRA and payment of the applicable subscription fee for the coming period and all feesthat would have been paid had Customer not discontinued Maintenance Services.
For so long as Customer is current in the payment of all subscription fees, the following Maintenance Services will be made available during the applicable Subscription Term: (a) Updates released during the Subscription Term, and (b) Error resolution assistance for Errors in the Software reported by Customer during the Subscription Term, as further described below. Maintenance Services and Support will be provided only with respect to the then current version of the Software and only for active Subscriptions. VECTRA shall have no obligation to provide Maintenance Services or Support for: (i) altered or damaged Software or any portion of the Software incorporated with or into other software; (ii) Software or Subscription problems caused by Customer’s negligence, abuse or misapplication, use of the Software or Subscriptions other than as specified in VECTRA’s user manual or other causes beyond the control of VECTRA; or (iii) Software or Subscriptions installed or used on any hardware that is not supported by VECTRA.Support requests may be submitted online 24/7 at support.vectra.ai. For Error resolution assistance, VECTRA will use commercially reasonable efforts to correct any Error reported by Customer in the Software attributable to VECTRA, employing a level of effort commensurate with the severity of the Error, provided, however, that VECTRA shall have no obligation to correct all errors in the Software.
Customer is responsible for providing sufficient information and data to allow VECTRA to readily reproduce all reported Errors. If VECTRA believes that a problem reported by Customer may not be due to an Error in the Software or cannot be readily reproduced VECTRA will so notify Customer. Customer shall document and promptly report all Errors to VECTRA and take all steps necessary to carry out procedures for the rectification of Errors or malfunctions within a reasonable time after such procedures have been received from VECTRA.
For the purpose of this Exhibit only, the following terms shall have the following meanings:
“Error” means a reproducible programming error in the Software which significantly degrades the Software as compared to VECTRA’s published performance specifications. Correction may be provided by patch, correction in the next Update, work-around or avoidance procedure, or other resolution to remedy the Error.
“Support” means technical support telephone or email assistance provided by VECTRA to a designated Customer support contact during normal business hours concerning the installation and use of the Product.
“Update” means a maintenance release of the Software designated as such by VECTRA and released on a general, regularly scheduled basis as part of standard maintenance to VECTRA's other maintenance customers for the same version of the Software without additional charge