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VECTRO INC TERMS OF SERVICE

These terms of service (“Terms”) cover your use and access to our services, client software and websites ("Services").

The parties agree as follow:

  1. Confidentiality.  “Confidential Information” means information that the disclosing party (“Discloser”) identifies as confidential or the receiving party (“Recipient”) should reasonably understand to be confidential given the circumstances and the nature of the information. Confidential Information does not include information that the Recipient can demonstrate: (a) it knew without restriction before receipt from the Discloser, (b) is publicly available through no fault of the Recipient, (c) it rightfully received from a third party without a duty of confidentiality, or (d) is independently developed without use of or reference to Confidential Information.  The Recipient may use Confidential Information only to fulfill its obligations under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information.  The Recipient may share Confidential Information with its employees, agents and contractors who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement.  If compelled to do so by law, the Recipient may disclose Confidential Information as long as it provides reasonable prior notice to the Discloser (unless legally prohibited).  All Software and Data constitute Vectro Inc Confidential Information, provided that Company may use Software and Data as provided in the Service Order(s). Company must store all Software and Data on servers owned or controlled by Company.  Company will not give third parties access to Company’s Vectro Inc account.


  1. Reporting and Audit.  As to any reporting required in a Service Order, Company will provide reporting to Vectro Inc daily, via email, FTP, API, pixel or other agreed method.  In addition, Vectro Inc may audit Company’s activity logs and records to review the accuracy of the metrics reported by Company.  [1] 


  1. Marketing and Publicity.  At Vectro Inc’s request, Company will promote the Services in emails and joint webinars, a joint press release, blogs and case studies.  Vectro Inc may include Company’s name and logo in descriptions of Vectro Inc’s partners in its marketing materials and on the Vectro Inc website, and may identify Company as a customer of Vectro Inc to reporters during interviews.  Unless described otherwise in a Service Order, neither party will make any public statement about this Agreement without the other party’s prior written agreement (email sufficing). 


  1. Compliance.  Each party will comply with all applicable laws and regulations.  Neither party will knowingly introduce viruses or other malware to the other party’s systems or end users or infringe any third-party intellectual property or other rights.  Company shall not use the Services in a manner that would violate laws prohibiting discrimination or to determine adverse terms and conditions of or ineligibility for employment, credit, health care treatment or insurance. 


    1. If Company is located in the United States, Company agrees to apply the EU-U.S. Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at https://privacyshield.gov (“Privacy Shield Principles”) to any EEA Data.  For clarity, Company agrees to (a) use EEA Data only for purposes consistent with the privacy policy posted by Vectro Inc (if Company receives EEA Data as a “controller” as defined by the Privacy Shield Principles) or only for purposes specified by Vectro Inc (if Company receives EEA Data as a “processor” as defined by the Privacy Shield Principles); (b) notify Vectro Inc in writing upon Company’s determination that it can no longer apply the Privacy Shield Principles to EEA Data; and (c) upon such determination, cease use of EEA Data or take other reasonable and appropriate steps to apply the Privacy Shield Principles to EEA Data.[2] 


  1. Intellectual Property.  As between the parties, Company owns all right, title and interest in and to its properties and technology and any future developments and enhancements thereto, and Vectro Inc owns all right, title and interest in and to the Services and any future developments and enhancements thereto.  Each party reserves the right to continually evolve its services and technologies.  Except as explicitly granted in this Agreement, nothing in this Agreement grants one party any right, title or interest in the other party’s products, services, technologies or intellectual property, and each party reserves all rights.  Except as expressly prohibited herein, each party may use the information generated by provision of the Services for its respective business purposes, provided that such information is aggregated and anonymized (i.e., it does not disclose information that could reasonably identify the other party or an individual person). Vectro Inc shall not be prohibited from improving its services on the basis of general learning and know-how gained from the provision of Services to Company and Vectro Inc's other partners.  Vectro Inc may use any suggestions or feedback without accounting, attribution or compensation to Company.  If Vectro Inc is providing Company with Software, except to the extent permitted by law, Company may not reverse engineer, decompile, modify, combine, create derivative works of, distribute or adapt any Software.  Company may not delete any copyright or proprietary notices on Software and may not share Software with any third party.


  1. Termination[3] .  A party may terminate this Agreement (including all Service Orders) immediately if the other party is in material breach, has been given a notice of such material breach, and has failed to cure within 30 days. Immediately upon expiration or termination of this Agreement, Company will stop using all Services and will delete all Software and Data.  If this Agreement is terminated for Company’s uncured breach, Company will promptly pay any minimum amounts that would have been due for the full duration of the Term as it existed prior to the early termination. 


  1. DISCLAIMERS.  Vectro Inc provides all Services (including Data and Software) “AS IS” and “AS AVAILABLE”, without warranty of any kind, and disclaims all express or implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, performance, accuracy, reliability and non-infringement.  This disclaimer of warranty constitutes an essential part of this Agreement.


  1. Mutual Indemnity.  Vectro Inc will indemnify, defend and hold harmless Company, its officers, directors, employees and representatives from any liability or expense (including reasonable attorney’s fees) (“Liabilities”) from any third party claim that the Software used in accordance with this Agreement or that the proprietary process Vectro Inc uses to provide the Services to Company infringes third party US intellectual property rights.  Company will indemnify, defend, and hold harmless Vectro Inc, its officers, directors, employees and representatives (“Vectro Inc Parties”) from any Liabilities from any third party claim arising out of or related to any data or information that Company provides to Vectro Inc, Company’s use of any Data, Company’s creation and/or use of any Derived Data (if applicable and as defined in a Service Order), including claims related to combining Derived Data with Company data or third party data, or any alleged fact that would constitute a breach of this Agreement by Company. Each party’s indemnification obligations are conditioned upon (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with indemnitor, at indemnitor’s sole cost and expense.  The indemnitor shall not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party.  The indemnified party may participate with its own counsel, at its own expense.


    1. Vectro Inc shall have no obligation for claims arising from or related to (a) compliance with Company specifications, (b) combination of Software and/or Data with products or services not supplied by Vectro Inc, where the cause of action would not have arisen but for such combination, (c) adaptation or modification of Software or Data, where the cause of action would not have arisen but for such adaptation or modification, (d) Company’s failure to follow instructions provided by Vectro Inc which would have cured the cause of action, provided that following such instructions would not have caused Company substantial additional cost, (e) use of Software or Data other than as described in the Service Orders, or (f) Company’s continued use of a version of the Software other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used.  If any of the subsections above apply, Company will indemnify, defend and hold harmless the Vectro Inc Parties from and against any Liabilities arising from such claims. 


    2. If Software or Data is held in a suit or proceeding to infringe any intellectual property rights or other rights of a third party, or Vectro Inc reasonably believes that it is likely to be found to do so, then Vectro Inc may, at its sole cost, expense and option, either (a) procure the right to continue using such Software or Data, or (b) modify such Software or Data so that it becomes non-infringing without affecting the basic functionality of such Software or Data; provided, however, that if (a) and (b) are not practicable, Vectro Inc may, in its sole discretion, terminate this Agreement with respect to such Software or Data by giving Company 30 days written notice, upon which termination Vectro Inc shall refund the portion of such pre-payment that reflects the remaining license term.  Vectro Inc’s obligations as stated in this “Mutual Indemnity” section are Company’s sole remedy and Vectro Inc’s sole liability arising out of or relating to such infringement claims.


  1. LIMITATION OF LIABILITY AND DAMAGES.  Except with respect to liabilities arising out of violations of the limited licenses described in a Service Order, (a) neither party shall be liable to the other for punitive, incidental, indirect, special, reliance or consequential damages, including lost business, revenue or anticipated profits, regardless of the cause of action and whether or not the party was advised of the possibility of such loss or damages, and (b) except for Company’s obligation to pay any minimum fees and for services already provided, in no event will a party’s total cumulative liability under this Agreement exceed the amount paid or owed by Company under this Agreement for the 12 months prior to the date that the cause of action arose. [4]  These limitations of liability apply even if any remedy specified in this Agreement is found to have failed of its essential purpose.


  1. Notices.  Notices must be in writing and are effective when (a) delivered personally or (b) sent by email to the address provided in this Agreement (on page 1 for Company, and to legal@thevectro.com [5] for Vectro Inc) if the sending party does not receive an error notice and the email includes in the subject line “LEGAL NOTICE.”  For the avoidance of doubt, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices.  In that case, the sending party will attempt to reach the receiving party by phone.


  1. Force Majeure.  Neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.


  1. Dispute Resolution.  Any action arising under or related to this Agreement will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in San Francisco, CA [6] under the Commercial Dispute Resolution Procedures of the American Arbitration Association and the Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding. The prevailing party is entitled to reasonable attorneys’ fees and costs. The arbitration will be confidential except as required by law.  Claims arising under or related to this Agreement must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding.


  1. General.  Sections 3, 4, 7, 9-12, 14 and 15 will survive expiration or termination of this Agreement.  Each party shall comply with all attachments and exhibits to this Agreement (collectively, “Attachments”), all of which are incorporated into this Agreement.  This Agreement, including all fully executed Service Orders and all Attachments, is the entire agreement of the parties relating to this subject matter and it supersedes all other commitments and understandings with respect to such subject matter.  In the event of conflict between the main body of this Agreement and any Service Order or Attachment, the Service Order or Attachment will control. The parties acknowledge and agree that they have been represented in the negotiation and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel.  This Agreement cannot be amended except by a writing signed by both parties.  This Agreement and the licenses granted herein are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that either party upon written notice to the other party may assign this Agreement to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or to an affiliate. Notwithstanding the foregoing, Vectro Inc may terminate this Agreement immediately upon notice to Company if Company assigns this Agreement to a Vectro Inc competitor. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.  This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles.  This Agreement may be executed in one or more counterparts.  Faxed or emailed PDF copies of a party’s signature constitute valid and binding originals.