THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE SOFTWARE-AS-A-SERVICE SOLUTION PROVIDED BY VECTORSHIFT, INC. (“VECTROSHIFT”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF VECTORSHIFT’S SERVICES, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ON THE DATE IT IS ACCEPTED BY CUSTOMER VIA VECTORSHIFT’S ONLINE REGISTRATION PROCESS (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN VECTORSHIFT AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
Provision of the Service. Subject to all the terms of this Agreement, VectorShift grants Customer a non-sublicensable, non-transferrable (except with an assignment of this Agreement as authorized herein), nonexclusive, limited right to, during the subscription purchased by Customer hereunder (such as a monthly or annual subscription), access and use the hosted services provided by VectorShift (collectively, the “Service”) for purposes of helping Customer build artificial intelligence workflows. All activity under the Agreement shall be strictly in accordance with and subject to VectorShift’s applicable usage documentation (“Documentation”) and any other instructions provided or made available by VectorShift on the Service website or in any other manner.
General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to or sublicense the Service to a third party; (b) use the Service to help develop any products or services that compete with the Service, (c) use the Service for the direct benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service, (e) modify or create derivatives of the Service or any other materials provided by VectorShift, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by VectorShift.
Feedback. Notwithstanding anything else, Customer grants VectorShift a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. VectorShift agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to VectorShift for the Service.
Third-Party Applications. The Service may enable Customer to send Customer Data to and from different third-party equipment, services, sources, and destinations Customer uses (“Third-Party Applications”). Customer use of any Third-Party Applications is subject to Customer’s separate agreement with the provider. Customer is responsible for selecting and configuring the Third-Party Applications it chooses to use with the Service and for any exchange of Customer Data it enables through the Service. Notwithstanding anything to the contrary, VectorShift is not responsible for any Third-Party Applications used by Customer with the Service. For clarity, VectorShift has no liability or obligation under the separate agreement between Customer and the applicable third-party provider.
Support. VectorShift will use reasonable efforts to provide support if and as VectorShift deems it appropriate.
“Customer Data” means all (i) data provided by Customer or its systems or providers to VectorShift, and (ii) all data (if any) collected by the Software from Customer’s equipment or environment. As between the parties, Customer shall retain all right, title and interest in the Customer Data.
License of Data. Subject to the terms of this Agreement, Customer hereby grants to VectorShift a non-exclusive, worldwide, royalty-free right to use the Customer Data to the extent necessary to provide the Service to Customer. Customer represents and warrants that (i) it has all rights and authorization to provide the Customer Data, and (ii) Customer’s provision, use and maintenance of Customer Data complies with all laws, regulations and third-party rights.
Workflow. For clarity, VectorShift may collect data regarding usage of the components made available by VectorShift (such as which language learning models and prompts are used and how they are organized) to help improve the Service.
No intellectual property rights are assigned or transferred by either party in connection with this Agreement. VectorShift will not disclose any of the workflows created by Customer hereunder (unless Customer elects to share such workflows – e.g. via VectorShift’s workflow marketplace). But, for clarity, nothing prevents VectorShift’s other customers from using the Service to create the same or similar workflows.
FEES; PAYMENT. All fees are as set on VectorShift website and are payable in advance. Fees will be charged by VectorShift to Customer’s credit card when due. Customer hereby authorizes VectorShift (and its payment processor) to charge Customer’s payment method for all fees due. Customer will ensure that its payment account information provided to VectorShift (such as credit card number) is accurate and up-to-date at all times. Customer is responsible for all of the foregoing - other than taxes based on the income of VectorShift. Except as expressly set out herein, all fees are non-cancellable and non-refundable.
Late Payments. In the event of late payments, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse VectorShift for all costs of collection (including attorneys’ fees). If Customer's account is five (5) days or more overdue, in addition to any of its other rights or remedies, VectorShift reserves the right to suspend Customer’s access to the Service, without liability to Customer until such amounts are paid in full.
TERM AND TERMINATION
Term. This Agreement will begin on the Effective Date and will have the subscription term selected by Customer in during the Service registration process (“Subscription Term”). The Subscription Term will automatically renew for successive renewal terms of equal length to the initial Subscription Term, unless: (i) Customer cancels its Service account via the account functionality prior to the renewal date, or (ii) this Agreement is otherwise terminated as set out herein.
Termination. VectorShift may terminate this Agreement and the Subscription Term at any time, with or without notice; provided that, if such termination is in the middle of a Subscription Term and termination if not for Customer’s breach, VectorShift will refund all fees paid in advance for the remainder of the Subscription Term. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding.
Effect of Termination. Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) each party will return to the other party (or destroy at the discloser’s request) such other party’s Confidential Information (subject to Section 5.4 below). In the event this Agreement is terminated by Customer for VectorShift’s uncured breach as authorized in Section 5.2, or is terminated pursuant to Sections 6.2 or 7, VectorShift will promptly refund to Customer all fees paid in advance for the remainder of the term. In the event of any other termination, all fees that but for termination would otherwise have been due for the full term of Customer’s purchase (as if no termination had occurred) will be non-cancellable and non-refundable (and, if not already paid, will become promptly due).
Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.2, 1.3, 2.3, 4 (with respect to outstanding payment obligations), 5, 6.3, 7, 8 (for a reasonable wind-down period) and 9.
Mutual Warranties. Customer represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party.
Limited Warranty. VectorShift warrants, for Customer’s benefit only, that the Service will operate in substantial conformity with the applicable written technical documentation made available by VectorShift. VectorShift does not warrant that Customer’s use of the Service will be uninterrupted or error-free. VectorShift’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in VectorShift’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the non-conformity, or if VectorShift determines such remedies to be impracticable, to allow Customer to terminate this Agreement and receive as its sole remedy a refund as set out in Section 5.3. The limited warranty set forth in this Section 6.2 shall not apply if (i) the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (ii) if the Service is provided on a no-charge or evaluation basis.
Disclaimer; Limitation. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.2, THE SERVICE IS PROVIDED “AS IS'' AND VECTORSHIFT DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VECTORSHIFT MAKES NO WARRANTIES WITH RESPECT TO ANY WORKFLOWS CREATED BY CUSTOMER HEREUNDER. CUSTOMER ACKNOWLEDGES THAT ARTIFICAL INTELLIGENCE SYSTEMS ARE A RAPIDLY EVOLVING FIELD. WHILE VECTORSHIFT IS ALWAYS WORKING TO IMPROVE THE OFFERING, GIVEN THE PROBABLISTIC NATURE OF MACHINE LEARNING, THE OFFERING MAY PROVIDE INACCURTAE OUTPUT AND/OR ACTIONS OR OTHERWISE NOT ALWAYS PRODUCE INDENDED RESULTS. AS SUCH, CUSTOMER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY VECTORSHIFT WITH RESPECT TO (AND VECTORSHIFT WILL HAVE NO LIABILITY WITH RESPECT TO) THE SPECIFIC OUTPUT, ACTIONS OR RESULTS OF ANY ARTIFICAL INTELLIGENCE FEATURE OR FUNCTION. VECTORSHIFT WILL NOT BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF IT IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO VECTORSHIFT DURING THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00). NOTWITHSTANDING THE FOREGOING, VECTORSHIFT WILL NOT BE LIABLE FOR ANY WORKFLOWS CREATED BY CUSTOMER HEREUNDER.
CONFIDENTIAL INFORMATION. Each party agrees that all business and technical information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, and all fees and pricing information, will be VectorShift’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
Customer agrees that VectorShift may use Customer's name and logo on VectorShift’s web site and in VectorShift promotional and marketing materials.
Assignment. Customer will not assign or transfer this Agreement (in whole or part). Any attempt to transfer or assign this Agreement except as expressly authorized above will be null and void. VectorShift may freely assign this Agreement.
Force Majeure. VectorShift will not liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of VectorShift, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, supply chain issues, issues with VectorShift’s providers (such as its hosting provider), or refusal of a license by a government agency.
Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in Santa Clara, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Clara, California and both parties hereby submit to the personal jurisdiction of such courts.
Notice. All notices to Customer may be provided by VectorShift via email or account notification. Any legal notices to VectorShift must be sent to VectorShift, Inc., 388 Beale St. San Francisco, California 94105. In addition, legal notices must also be sent to email@example.com (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be updated by VectorShift on notice. If Customer does not agree to any amendment, its sole remedy is to terminate use of the Service within thirty (30) days from receipt of the amendment notice (otherwise Customer will be bound to the updated Agreement). If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically.