Vectrix Security, Inc.

Services Agreement

Last updated: 3/31/2021
This Agreement is entered into between Vectrix Security Inc. (“Vectrix”) and your organization (“Customer”) as of the Effective Date (as defined below). If the individual accepting this Agreement is accepting on behalf of a company, government agency, or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to this Agreement, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual does not have such authority, or if the individual does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Vectrix Product.
1. Definitions
1.1 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 Vectrix for the Vectrix Product.
Effective Date” means the last date this Agreement is executed, upon executing an Order Form, by accessing or using the Vectrix Product in any manner or by clicking “Sign Up” (or a similar button or checkbox) for use of the Vectrix Product.
Order Form” means an order form, quote or other similar document that sets forth the specific Vectrix Product and pricing therefore, and that references this Agreement and is mutually executed by the parties.
Vectrix Product” means Vectrix’s SaaS-based service that scans and monitors Customer’s third-party cloud and SaaS apps and identifies security issues.
2. Vectrix Product
2.1 Provision of Vectrix Product. Subject to the terms and conditions of this Agreement, Vectrix will make the Vectrix Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Vectrix Product for its internal business purposes.
2.2 Support. Subject to the terms hereof, Vectrix will provide Customer with reasonable technical support services. Vectrix technical support business hours will start at 9:00 am Pacific Time and run until 5:00 pm Pacific Time on weekdays. Technical support can be contacted via email at support@vectrix.io or via shared channels in the customer communication platform.
2.3 Data Security.
(a) Vectrix 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 Vectrix Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.  In furtherance of the foregoing, Vectrix will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the vectrix.io/security page.  Vectrix’s security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by Vectrix personnel except (a) to provide the Vectrix Product and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement. Vectrix will not materially diminish the protections provided as described on the https://www.vectrix.io/security page during the term of this Agreement.
2.4 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License 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 Vectrix Product;
(b) attempt to probe, scan or test the vulnerability of the Vectrix Product, breach the security or authentication measures of the Vectrix Product without proper authorization or wilfully render any part of the Vectrix Product unusable;
(c) use or access the Vectrix Product to develop a product or service that is competitive with Vectrix’s products or Product or engage in competitive analysis or benchmarking;
(d) transfer, distribute, resell, lease, license, or assign Vectrix Product or otherwise offer the Vectrix Product on a standalone basis; or
(e) otherwise use the Vectrix Product outside the scope expressly permitted hereunder and in the applicable Order Form.
2.5 Customer Responsibilities.
(a) Customer acknowledges that Vectrix’s provision of the Vectrix Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s applications, software 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 Vectrix Product under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Vectrix Product and notify Vectrix promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Vectrix Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Vectrix will have no liability for such failure (including under any service level agreement, if applicable).  In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Vectrix Product.
(c) Customer will not use the Vectrix Product to transmit or provide to Vectrix any personally identifiable, financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.6 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Vectrix 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.
3. Fees
3.1 Fees. Customer will pay Vectrix the fees set forth in the Order Form.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable, and except as set forth in Section 8.2, fees paid are non-refundable. Customer authorizes Vectrix to charge Customers` selected payment method for all applicable Fees and usage of the Vectrix Product on a recurring basis. All fees are payable immediately upon invoicing by Vectrix. Vectrix reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
3.2 Late Payment. Vectrix may suspend access to the Vectrix Product immediately upon notice if Customer fails to pay any amounts hereunder at least seven (7) days past the applicable due date.
3.3 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 Vectrix.  Customer will not withhold any taxes from any amounts due to Vectrix.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Vectrix exclusively owns all right, title and interest in and to the Vectrix Product and Vectrix's Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
4.2 Feedback. Customer may from time to time provide Vectrix suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Vectrix Product.  Vectrix will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Vectrix 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.
4.3 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, or permit to be disclosed, 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 or the License Restrictions, 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.
4.4 Performance Metrics. Customer further agrees that Vectrix has the right to aggregate, collect and analyze data and other information relating to the performance of the Vectrix Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Vectrix'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.
5. Warranties and Disclaimers
5.1 Vectrix. Vectrix warrants that it will, consistent with prevailing industry standards, perform the Vectrix Product in a professional and workmanlike manner and the Vectrix Product will conform in all material respects with the Documentation.  For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Vectrix Product or, if Vectrix cannot re-perform such deficient Vectrix Product as warranted, Customer shall be entitled to terminate the applicable Order Form in accordance with Section 8.2(a) and recover a pro-rata portion of the fees paid to Vectrix for such deficient Vectrix Product.
5.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Vectrix to use the same as contemplated hereunder.
5.3 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 VECTRIX PRODUCT IS BASED ON PREDICTIVE STATISTICAL MODELS, AND ARE INTENDED TO HELP SUPPORT THE EFFECTIVENESS OF, BUT NOT REPLACE, CUSTOMER’S THIRD PARTY CLOUD AND SAAS SECURITY.  THE VECTRIX PRODUCT MAY CONTAIN BUGS, MAKE ERRORS OR MISINTERPRET IT ISSUES, AND IN SUCH CASES VECTRIX CAN DISENGAGE ANY FUNCTIONALITY OF THE VECTRIX PRODUCT AT CUSTOMER’S REQUEST.  VECTRIX DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL SECURITY ISSUES WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILL NOT BE REQUIRED TO RESOLVE A SECURITY ISSUE.
5.4 Beta Products. From time to time, Customer may have the option to participate in a program with Vectrix where Customer gets to use Alpha or Beta Products, features or documentation (collectively, “Beta Products”) offered by Vectrix. The Beta Products are not generally available and are provided “as is”. Vectrix 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 Vectrix may terminate Customer’s access to the Beta Products at any time.
6. Indemnification
6.1 Indemnification by Vectrix. Vectrix will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Vectrix Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Vectrix) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Vectrix of such Claim, (b) Vectrix will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Vectrix may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Vectrix in connection therewith.  If the use of the Vectrix Product by Customer has become, or in Vectrix's opinion is likely to become, the subject of any claim of infringement, Vectrix may at its option and expense (i) procure for Customer the right to continue using and receiving the Vectrix Product as set forth hereunder; (ii) replace or modify the Vectrix Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term.  Vectrix will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Vectrix Product by Customer not in accordance with this Agreement; (C) modification of the Vectrix Product by any party other than Vectrix without Vectrix's express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Vectrix Product with other applications, portions of applications, product(s) or services where the Vectrix Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Vectrix's sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Vectrix against any Claim made or brought against Vectrix by a third party arising out of the Excluded Claims, and Customer will indemnify Vectrix for any damages finally awarded against (or any settlement approved by Customer) Vectrix in connection with any such Claim; provided that (a) Vectrix will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Vectrix's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Vectrix of all liability) and (c) Vectrix reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, 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 CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8. Termination
8.1 Term. The term of this Agreement will commence on the Effective 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 Effective Date of 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.
8.2 Termination. Except as otherwise set forth in Order Form, each party may only terminate this Agreement for convenience 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.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9. General
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Vectrix Product.
9.2 Publicity. Customer agrees that Vectrix may refer to Customer’s name and trademarks in Vectrix's marketing materials and website; however, Vectrix will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.3 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.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.  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.
9.5 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.
9.6 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.
9.7 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.
9.8 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 parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Vectrix 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 Vectrix, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 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.
9.11 Government Terms. Vectrix provides the Vectrix Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Vectrix Product, 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 Vectrix Product was developed fully at private expense.
9.12 Interpretation. For purposes hereof, “including” means “including without limitation”.