Vectorize Master Subscription Agreement

 Last Updated: September 10, 2024

This Agreement governs the procurement of Vectorize Products as set forth in the Order Schedule which references this Agreement. This Agreement may govern multiple Order Schedules between Vectorize AI, Inc. and its Affiliates (“Vectorize”) and the person or entity agreeing to these terms and its Affiliates (“Customer”).

 

1. License Grant and Restrictions

 

1.1 License Grant. Provided Customer is in compliance with all of the terms and conditions of this Agreement, Vectorize grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, irrevocable (except in the event of termination or expiry of the applicable Order Schedule) license to access or use and to permit Customer Affiliates and Authorized Users to access or use the Products during any applicable Product Term. Customer’s rights to use the Products are limited to those expressly set forth in this Agreement, including any license parameters specified in the Order Schedule. Vectorize and its licensors retain all rights, title and interest in and to the Products and all related intellectual property rights, including without limitation any modifications, updates, or other add-ons.

 

1.2 Restrictions. Customer shall not do any of the following to the Products: (1) copy, modify, create a derivative work of, translate, (2) reverse engineer, decompile or disassemble, or otherwise attempt to extract the source code, except to the extent permitted by, and in accordance with mandatory applicable law; (3) assign, sublicense, transfer, lease, rent or otherwise distribute or make available to any third party; (4) use for High Risk Activities or otherwise contrary to the Documentation; (5) use for any unlawful or unauthorized purpose or in violation of any applicable law or regulation, including in any training on a substantially similar product or service; or (6) use the Products on behalf of or for the benefit of any entity or person who is legally prohibited from using the Products.

 

1.3 Authorized Use. Customer is responsible and liable for (1) keeping secure all account credentials for the Products issued to (or created by) Customer and Authorized Users, and (2) all Authorized Users’ acts and omissions in connection with the Products and compliance with the Agreement. Customer should promptly contact Vectorize in writing if Customer believes that the account credentials of Customer or its Authorized Users’ have been compromised or if there has been any unauthorized use of the Products. Vectorize reserves the right to reset or terminate any account login credentials if Vectorize reasonably believes there has been unauthorized access or activity on a Customer’s account. Vectorize shall, if applicable, give Customer reasonable prior notice before resetting or terminating login credentials pursuant to this Section, and shall issue new login credentials promptly once any unauthorized use or activity is remedied, so as to avoid disruption to Customer’s and/or Authorized Users’ use of or access to the Products.

 

1.4 Feedback and Usage Analytics. Customer may provide feedback to Vectorize about the Products (e.g. technical support input, suggestions, or enhancement requests) (“Feedback”) and generate usage analytics, including but not limited to aggregated technical data and metadata from the Products (“Usage Analytics”). Subject always to Vectorize’s obligations under Section 5 (Confidentiality) Vectorize shall have all right, title, and interest in and to such Feedback, and Customer agrees to assign to Vectorize all right, title, and interest in and to such Feedback. Vectorize may develop, modify, and improve the Products based on Customer’s Feedback and Usage Analytics without any obligation to Customer. In no event may Vectorize sell, license or otherwise externally distribute Customer’s Usage Analytics or Customer Confidential Information.

 

1.5 No-Fee License. Vectorize may make certain Products available for trial, proof of concept, preview, beta testing, demo, or other similar purposes. Products provided to Customer for such purposes are provided on an “as is” and “as available” basis and without any warranty or indemnity and may be used solely for non-production purposes (“No-Fee License”), without the right to Support. No-Fee License Products may contain bugs, errors, or other defects and Customer uses at its sole risk. Vectorize may discontinue or terminate such offerings at any time in its sole discretion without notice. Vectorize shall not be liable for any damages arising out of or in connection with a No-Fee License.

 

1.6 Affiliate Use. Customer’s Affiliates may purchase Products from Vectorize by executing an Order Schedule that incorporates by reference the terms of this Agreement.

 

2. Customer Data, Privacy, and Security

 

2.1 Customer Data. As between Vectorize and Customer, all title and intellectual property rights in and to the Customer Data is owned by Customer. In connection with its provision of certain Products and in order to provide Support and exit assistance pursuant to Section 4.6 (“Exit Assistance”), Customer grants Vectorize a worldwide, non-exclusive, non-transferable license during the Product Term and during any period of Exit Assistance to access, process, copy, archive, or store Customer Data solely for the purpose of (and only to the extent necessary for) providing Products, Support, and Exit Assistance under this Agreement.

 

2.2 Account Information. Vectorize may collect, process and store contact information and related billing information (“Account Information”). Customer must provide complete and accurate Account Information and notify Vectorize of any changes. By providing Account Information, Customer hereby consents that it and any Authorized Users on its account may receive email or other communications from Vectorize. Customer hereby grants Vectorize the necessary rights in order to process and store the Account Information. Subject to Vectorize’s obligations under Section 5 (“Confidentiality”) Vectorize may use aggregated and de-identified versions of the Account Information for its internal business purposes only.

 

2.3 Vectorize Security Technical and Organizational Measures. Vectorize is subject to certain applicable regulatory, contractual, and legal obligations. As a consequence of those obligations Vectorize operates a security assurance program governing the technical and organizational measures to ensure the security of Customer Data.

 

2.4 Vectorize Privacy Notice. With respect to any Customer Personal Data processed by Vectorize, and insofar as Vectorize has access to such Customer Personal Data, Vectorize shall comply with the Data Processing Agreement. With respect to any Customer Personal Data obtained by Vectorize as a controller, Vectorize shall comply with the Vectorize’s Privacy Notice.

 

3. Payment

 

3.1 Fees. Customer will pay all fees (the “Fees”) as specified in the Order Schedule and any applicable Taxes. If the due date is not otherwise specified in the Order Schedule, all Fees are due 30 days from the date of receipt of invoice. Except as expressly provided otherwise in this Agreement, all Fees are non-cancelable and non-refundable. Unless otherwise specified in the Order Schedule, all Fees are in U.S. dollars. If Customer requires a purchase order to complete its purchase and notifies Vectorize prior to the effectiveness of the applicable Order Schedule, then the Products will not be provided until Customer delivers a conforming purchase order unless agreed otherwise in writing.

 

3.2 Taxes. Customer is responsible for any duties, customs fees, or taxes (other than Vectorize’s income tax) associated with the purchase of the Products provided by Vectorize, (including any related penalties or interest) (“Taxes”), and shall pay the listed fees without deduction for Taxes. If Customer is required by applicable law to withhold any amount from any payments specified in the Order Schedule, then Customer will pay Vectorize the listed fees as if no withholding were required, and shall remit the withholding to the appropriate governmental authorities on behalf of Vectorize, with a copy of the tax receipt or certificate forwarded to Vectorize.

 

3.3 Delinquencies. Any late payments of undisputed amounts will accrue late charges at the rate of 1.5% of the outstanding balance per annum, or the maximum rate permitted by law, whichever is lower. If Customer utilizes a credit card to pay for the Product(s) and if a Customer’s credit card expires or is canceled or the charge is otherwise denied, Vectorize will attempt to reprocess the charges. Customer is responsible for updating its credit card or bank information to ensure payment can be made. Customer shall be responsible for all reasonable costs and expenses incurred by Vectorize in collecting the unpaid Fees, including, but not limited to, attorney’s fees, court costs, and collection agency fees.

 

3.4 Disputes. If Customer believes that Vectorize has incorrectly billed Customer, Customer shall use reasonable endeavors to contact Vectorize in writing within 60 days of the date of receipt of invoice (“Dispute Period”) for the charge in dispute, specifying the error. To the fullest extent permitted by applicable law, Customer waives any and all claims relating to the Fees unless Customer has properly notified Vectorize of the dispute within the Dispute Period. The foregoing does not waive any of Customer’s rights with its credit card issuer or bank, which are subject to Customer’s agreement with such entity.

 

4. Term & Termination

 

4.1 Agreement Term. This Agreement will begin on the Effective Date and continue until the later of the following: (1) the expiration or completion of all Product Terms, after which either party may terminate this Agreement with 15 days prior written notice; or (2) the date on which the Agreement is terminated as specified herein.

 

4.3 Termination for Breach.

 

4.3.1 Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice.

 

4.3.2 In the event a party is subject to an insolvency event (e.g. failing to pay its obligations as they arise, being declared bankrupt, or commencing proceedings under any law providing debt relief to the party), the party that is not the subject of the insolvency event may terminate the Agreement immediately upon notice to the party that is the subject of the insolvency event.

 

4.3.3 Vectorize shall have the right to suspend or terminate this Agreement at any time in response to any actual or suspected breach of clause 10.4 of this Agreement, or in the event that the provision of the Products becomes prohibited under Sanctions and Export Controls Laws or applicable law. Vectorize shall at no time be required to take any steps in relation to this Agreement where Vectorize reasonably considers that doing so may be a breach or otherwise expose Vectorize to risk of penalty under Sanctions and Export Controls Laws or applicable law. In the event that Customer becomes a Restricted Party, Customer shall de-install and delete the Products from Customer’s systems as soon as reasonably practicable, upon request from Vectorize.

 

4.4 Suspension. Vectorize may, without limitation to any other rights or remedies, suspend this Agreement and Customer’s access to the Product: if: (a) Customer’s use of the Products is fraudulent; (b) Customer breaches applicable laws or regulations, (c) Customer’s use of the Product poses a security risk, or (d) Customer exposes Vectorize or its partners to third party liability (subsections (a) through (d) collectively referred to as a “Suspension Event“).

 

4.4.1. If a Suspension Event is due to Customer’s or an Authorized User’s negligence or act of omission, Vectorize shall provide Customer with reasonable information in Vectorize’s possession so that Customer may investigate the cause of the Suspension Event. Vectorize shall reinstate Customer’s access promptly after Customer has remedied the Suspension Event, or demonstrated to Vectorize’s reasonable satisfaction (Vectorize acting reasonably) that Customer has taken commercially reasonable steps to minimize recurrence of that Suspension Event.

 

4.4.2. If a Suspension Event is due to Customer’s or an Authorized User’s fraudulent use of the Products, breach of applicable laws or regulations, gross negligence or willful misconduct, Vectorize shall have the right to terminate this Agreement (without the ability to cure) and any applicable Order Schedule without any rights of reinstatement.

 

4.5 Effect of Termination or Expiration. If the Agreement expires or is terminated, then: (1) subject to Section 4.6 (“Exit Assistance”) the rights granted by one party to the other will immediately cease; (2) all Fees owed by Customer under any existing Order Schedule or Agreements are immediately due upon receipt of the final invoice; (3) Customer will immediately cease any and all access to and delete the Products; and (4) upon written request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party. If the Agreement is terminated by Customer under Section 4.3.1 or 4.3.2, Vectorize shall refund Customer the unused prorated portion of any Fees paid for the Product.

 

4.6 Exit Assistance. Subject to the payment of applicable fees, Vectorize shall provide Customer with such cooperation, support and information reasonably required by Customer for a period of no more than 30 days to facilitate an orderly transition from the provision of Products by Vectorize under this Agreement.

 

5. Confidentiality

 

5.1 Confidentiality Obligation. During the term of this Agreement, both parties agree that: (1) Confidential Information will be used only for the purposes of Vectorize’s performance of this Agreement or Customer’s and Authorized Users enjoyment of the benefit of this Agreement and only in accordance with the terms and conditions of this Agreement; (2) each will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (3) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel (collectively, “Representatives”), in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement and provided the receiving party agrees to be remain liable for its Representatives act or omissions. Vectorize may use Confidential Information and Customer Data for internal business purposes only, including but not limited to providing Support, and improving and testing any Vectorize Products. Vectorize shall not incorporate Customer Confidential Information into any Vectorize Product, nor disclose Confidential Customer Information to any person except as permitted in Section 5.1(3) above.

 

5.2 Exclusions. This Agreement imposes no obligation with respect to information that: (1) is a part of or enters into the public domain other than by breach of this Agreement; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; or (4) is independently developed without reference to the Confidential Information of the disclosing party.

 

5.3 Publicity. Vectorize may publicly identify Customer as a customer, including Customer company name and logo. Customer may revoke the rights granted in this Section at any time with prior written notice.

 

6. Warranties

 

6.1 Mutual Warranties. Each party represents and warrants that: (i) it has the legal power to enter into and perform under this Agreement; and (ii) it will comply with the laws, rules and regulations applicable to Vectorize in its provision of the Products (in the case of Vectorize) or applicable to its use of the Products (in the case of Customer).

 

6.2 Support Warranty. Vectorize warrants that it will perform the Support with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. As Customer’s sole and exclusive remedy for breach of this warranty, Vectorize will promptly attempt to re-perform the applicable Support within 30 days or such longer period as agreed to by the parties in writing, or at Vectorize’s option refund any Fees paid for the affected Service(s) or Support.

 

6.3 Cloud Services and Software Warranty. Vectorize warrants that, during the Product Term, the Cloud Services and Software will perform in material conformance with its published Documentation. As Customer’s sole and exclusive remedy for breach of this warranty, Vectorize will remedy such issues as provided in the applicable Support policy, or at Vectorize’s option and provided Customer’s stopped use of the Product, refund the unused prorated portion of any Fees paid for the affected Product.

 

6.4 Harmful Code. Vectorize will use commercially reasonable efforts to ensure that the Cloud Services and Software made available to Customer are free from any computer “viruses,” “worms” or other malicious code.

 

6.5 Customer Data Warranty. Customer warrants that all collection, transfer, and use of any Customer Data in connection with the Products will comply with all applicable laws, including but not limited to obtaining relevant consents, and will not violate, or infringe upon, the patents, copyright, trademarks, trade secrets or privacy rights of any third party.

 

6.6 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER VECTORIZE NOR ITS SUPPLIERS PROVIDES ANY OTHER WARRANTIES REGARDING THE PRODUCTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Vectorize OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENTS. THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCTS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.Vectorize MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY CUSTOMER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.

 

7. Indemnity

 

7.1 Vectorize Indemnity. Vectorize shall defend and indemnify the Customer and Authorized Users (together, “Indemnified Parties’’) during the term of this Agreement or settle at its sole expense and pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Vectorize) for third party claims alleging that the Software and Cloud Services as provided by or on behalf of Vectorize directly infringes or misappropriates any patent, copyright, or trade secret of a third party.

 

7.2 Customer Indemnity. Customer shall defend or settle at its sole expense and shall pay all damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Customer) for third party claims arising out of: (i) Customer’s violation of Sections 1 and 6; and (ii) any violation of third party rights (including without limitation any intellectual property rights or privacy rights) arising out of or relating to the Customer Data.

 

7.3 Conditions. The indemnification obligations under this article are subject to the indemnified party (i) promptly giving written notice of the claim to the indemnifying party, (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the claim, (iii) at the indemnifying parties request and cost, providing the indemnifying party with all reasonable assistance required to effectively defend the claim. Any settlement intended to bind the indemnified party shall not be final until the indemnified party has approved the settlement, for which such approval shall not be unreasonably delayed or withheld.

 

7.4 Injunctions. If Customer’s rights to use the Products are, or in Vectorize’s opinion could be, subject to an injunction for an indemnified claim, then Vectorize may, at its sole option and expense: (1) procure for Customer the right to continue using the Product according to the terms of this Agreement, (2) modify the Product such that it operates with materially equivalent functionality without infringing or misappropriation, or (3) terminate the Order Schedule and refund the unused prorated portion of any Fees paid for the Product.

 

7.5 Exclusions. The indemnity provided by Vectorize under this Agreement does not extend to claims arising from or relating to: (1) use of the Products under a No-Fee License; (2) modifications to the Products not provided by or approved in writing by Vectorize; (3) use of the Products in combination with any data, software, or hardware not provided by Vectorize to the extent the alleged infringement would not have occurred without the combination; (4) Open Source Software; or (5) allegedly infringing activities that continue after Vectorize has informed Customer in writing of and made available to Customer at no additional charge a substantially similar version of the Product that would have avoided the alleged infringement and (ii) afforded Customer a reasonable period of time to migrate to such replacement Product.

 

7.6 Remedy. This section states Customer’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled “Limitation of Liability.”

 

8. Limitation of Liability

 

8.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT, STRICT LIABILITY, INDEMNITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

8.2  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF VECTORIZE TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAYABLE OR PAID BY CUSTOMER TO VECTORIZE FOR THE 12 MONTHS PRIOR TO THE DATE THE CLAIM ARISES.

 

8.3  THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT LAWFULLY BE LIMITED OR EXCLUDED.

 

9. Insurance

 

During the term of this Agreement, Vectorize will maintain at least the following levels of insurance coverage: (1) general commercial liability of $1 million per occurrence, $2 million aggregate for bodily injury and property damage; (2) automotive, hired and non-owned liability of $1 million for bodily injury and property damage; (3)errors and omissions (including cyber-liability) of $1 million per claim and aggregate limit; and (4) workers’ compensation meeting statutory limits.

 

10. Miscellaneous

 

10.1 Assignment. The Agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Schedules), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates. Any such assignment shall be effective upon payment of all amounts then due. Vectorize shall be entitled to subcontract any of its obligations under the Agreement, in which case, Vectorize shall remain responsible for the acts or omissions of a subcontractor as if they were Vectorize’s acts or omissions.

 

10.2 Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: the Order Schedule, this Master Subscription Agreement, and the URL Terms.

 

10.3 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The URL Terms are hereby incorporated by this reference. Customer agrees that its purchase of a Product is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Vectorize, including any roadmaps or target release dates, with respect to future functionality or features.

 

10.4 Sanctions and Export Controls. Customer hereby acknowledges and agrees that the Products may be subject to Sanctions and Export Controls Laws. Customer agrees to comply with all Sanctions and Export Controls Laws and other applicable law in connection with Customer’s use of the Products. In particular, but without limitation, the Products may not, in violation of any laws, be exported or re-exported: (1) into any U.S. embargoed country; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or otherwise used or transferred in any way that exposes Vectorize to risk of penalty under Sanctions and Export Controls Laws. Customer represents and warrants that Customer is not (i) located, resident or incorporated in any jurisdiction subject to comprehensive sanctions, including but not limited to Iran, Cuba, Syria, North Korea, and the non-Government controlled regions of Ukraine, (ii) a Restricted Party, or (iii) owned or controlled by any party or parties in (i) or (ii).Customer undertakes to immediately inform Vectorize in the event of breach of any of the foregoing representations and warranties, or otherwise in the event that Customer is no longer able to make such representations, warranties or commitments going forward.

 

10.5 Federal Agency Users. The Cloud Services and Software were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.

 

10.6 Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused by a force majeure event, which shall mean an event or circumstance beyond the reasonable control of such party, including but not limited to acts of God, pandemic, war, terrorism, natural disasters, strikes, lockouts, or other labor disputes, government regulations, or other events of similar or dissimilar nature. If a force majeure event occurs, the affected party shall promptly notify the other party of the event and its expected duration. The affected party shall use reasonable efforts to mitigate the effects of the force majeure event, however, this clause shall not excuse any payment obligations of either party hereunder. If the force majeure event continues for more than 30 days, either party may terminate this Agreement by giving written notice to the other party.

 

10.7 Governing Law. This Agreement is construed in accordance with and governed by the internal laws of the State of Delaware without regard to its conflict of laws principles, and each party hereby consents to the jurisdiction of the federal or state courts of Kent County, Delaware, USA. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this Agreement.

 

10.8 Independent Contractors. This Agreement does not create an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.

 

10.9 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

 

10.10 Notices. All legal notices must be in writing and addressed to the other party’s legal department and primary point of contact as set forth on the Order Schedule. Notice will be treated as given on receipt, as verified by written or automated receipt or by email (as applicable).

 

10.11 Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. A waiver shall be effective only if made in writing and signed by the waiving party’s authorized representative.

 

10.12 Survival. Provisions of the Agreement related to the following subjects will survive the termination or expiration of the Agreement: Payment, Restrictions, Account Information, Customer Data, Effect of Termination, Confidentiality, Limitation of Liability, and Miscellaneous.

 

10.13 Updates. Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Vectorize may periodically update a URL referenced in this Agreement (collectively, the “URL Terms”), provided, however, that any update to URL Terms may not materially diminish any of Customer’s rights or remedies, increase the Customer’s obligations or potential liabilities under this Agreement or reduce or limit Vectorize’s obligations, or result in any material reduction in functionality or material degradation in performance of Software or Cloud Services during the term of the relevant Order Schedule.

 

11. Definitions

 

“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

 

“Authorized User” means an employee or contractor employed or engaged by Customer and whom Customer authorizes to use the Products for the benefit of Customer.

 

“Cloud Services” means the software as a service offerings made available to Customer under this Agreement as specified in an Order Schedule, including error corrections, modifications and updates to such items. The Cloud Services may include Vectorize as defined in Exhibit B.

 

“Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. Confidential Information does not include Feedback or Usage Analytics.

 

“Customer Data” means any and all electronic data or information, including Customer Personal Data and Account Information which is transferred by Customer into the Products, or otherwise stored, created, processed or modified pursuant to the Agreement.

 

“Customer Personal Data” means any Customer Data that is defined as “Personal Data” under applicable EU or UK Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to Vectorize or accessed, stored or otherwise processed by Vectorize in connection with the Products.

 

“Data Processing Agreement” means the Vectorize Data Processing Agreement available at the last updated https://blog.vectorize.io/legal/vectorize-products-dpa.

 

“Documentation” means the Product specific materials available at the last updated https://docs.vectorize.io

 

“Effective Date” means the earlier of the date the Agreement is accepted by Customer or the date an Order Schedule is fully executed.

 

“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Products could lead to death, personal injury, or environmental damage.

 

“Open Source Software” means any software that is licensed pursuant to: (a) any license that is a license now or in the future approved by the open source initiative and listed at https://www.opensource.org/licenses, and all versions thereof; or (b) any license to software that is considered “free” or “open source software” by the open source foundation, free software foundation or other applicable foundation.

 

“Order Schedule” means an order, either direct or indirect, registration confirmation or other fully executed document that incorporates this Agreement.

 

“Privacy Notice” means the Vectorize privacy notice available at the last updated https://blog.vectorize.io/privacy

 

“Product(s)” means Cloud Services, Software, Support.

 

“Product Term” means the time period or other licensing parameters specified in Customer’s Order Schedule or applicable Supplement and modified by any applicable extension or early termination.

 

“Restricted Party” means any individual or entity included on, or owned or otherwise controlled by one or more individuals or entities included on, the following: the list of designated persons maintained by the United Nations; the Specially Designated Nationals List, the Foreign Sanctions Evaders List and the Sectoral Sanctions Identifications List, all administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury; the U.S. Denied Persons List, the U.S. Entity List, and the U.S. Unverified List, all administered by the U.S. Department of Commerce; the consolidated list of designated persons, groups and entities subject to E.U. financial sanctions, as implemented by the E.U. Common Foreign & Security Policy; the list of entities subject to restrictions under Article 5aa of EU Regulation No 833/2014 (as amended); and the consolidated list of financial sanctions targets administered by His Majesty’s Treasury of the United Kingdom.

 

“Sanctions and Export Controls Laws” means U.S. sanctions or export controls administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, U.S. Department of State and/or U.S. Department of Commerce; EU restrictive measures implemented pursuant to any EU Council or Commission Regulation or Decision adopted pursuant to a Common Position in furtherance of the EU’s Common Foreign and Security Policy; UK sanctions enacted by statutory instrument pursuant to the United Nations Act 1946 or the Sanctions and Anti-Money Laundering Act 2018; and/or administered or enforced by His Majesty’s Treasury of the UK or any other UK government body; and; any economic sanctions laws, regulations, embargoes or similar or equivalent restrictive measures to the extent applicable to the transactions contemplated by this Agreement.

 

“Software” means the Vectorize software made available to Customer for download as specified in an Order Schedule, including error corrections, modifications and updates to such items, and including the Documentation. “Software” does not include, and Vectorize does not warrant or support, unless otherwise provided in the applicable Supplement, software obtained from any source other than Vectorize or software that is provided by Vectorize under an open-source license.

 

“Support” means 1) the services described in the Support Policy as defined below and (2) enterprise or premium support  if purchased, and as described in the Support Policy.

 

“Support Policy” means the policy located at https://blog.vectorize.io/legal/vectorize-support-policy

 

“Third-Party Marketplace” means a third-party channel authorized by Vectorize to sell or offer Vectorize Products.