VELARO INCORPORATED ONLINE SOFTWARE LICENSE AGREEMENT. Updated 1/1/2024
IF YOU AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("LICENSE"), AND YOU ARE ACCEPTING ON BEHALF OF YOUR COMPANY OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL BINDING AUTHORITY TO THE COMPANY OR APPLICABLE ENTITY. IF YOU DO NOT HAVE LEGAL BINDING AUTHORITY, CLICK THE “I DO NOT ACCEPT” BUTTON BELOW (AND YOU MUST NOT HAVE ALREADY SIGNED A SEPARATE PHYSICAL OR ELECTRONIC CONTRACT). THIS LICENSE AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “I ACCEPT” BUTTON BELOW.
1. Definitions.
a. “Application” means Velaro’s real-time customer service software application, which enables one-to-one communication between customers and the support staff for Client’s Web Site.
b. “Authorized Licensee” means particular individuals identified by Client as having the right to access the Application pursuant to an Individual License.
c. “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.
d. “Individual Named License” is one that authorizes only the Authorized Licensee identified by the Client to access the Application.
e. “Offline Users” are the additional Authorized Licensees other than Online Users entitled to access the Velaro Application.
f. “Online Users” are the number of Authorized Licensees who can be logged in to monitor chats, shadow chats, or configure the Velaro Application at any one time.
g. “Unauthorized Use” means any use, possession, knowledge, viewing, inspection, examination, copying, disclosure, or other activity involving any part of the Application that is not expressly authorized under this Agreement or otherwise in writing by Velaro.
2. License.
Velaro licenses Client to access and use the Licensed Services as specified in Client’s purchase or separately signed agreement, including but not limited to chat, bot services, marketing automation, email channels, knowledgebase, storage limits, or other modules (collectively, “Licensed Services”). Access to each Licensed Service requires purchase of the appropriate license or subscription for that Service. This Agreement governs use of all Licensed Services, whether purchased online or via separate signed agreement, as referenced herein.
a. Authorized Licensees. Subject to the terms and conditions of this Agreement, Client may designate individuals as Authorized Licensees for each Licensed Service purchased. Each Authorized Licensee’s rights and access are strictly limited to the Licensed Services assigned to them. Client represents and warrants that all Authorized Licensees are authorized to access the Licensed Services on Client’s behalf and that Client is responsible for all activities and fees associated with such Authorized Licensees.
b. Unique Login Identification and License Use. Each Authorized Licensee will be assigned a Unique Login Identification and Password for access to the Licensed Services via web browser or Velaro’s optional Electron or Progressive Web Application (PWA). Such credentials are personal, non-transferable, and intended solely for use by the assigned Authorized Licensee. Use of one Authorized Licensee’s credentials by multiple individuals, or concurrent access by multiple users under a single license beyond the terms purchased, is prohibited. Client agrees to maintain the confidentiality of such credentials and is responsible for all activities occurring under each Authorized Licensee’s access.
c. License Reassignment. Client may reassign an Authorized License to a different individual in cases such as employee termination or role change. Such reassignments shall not occur more frequently than once every thirty (30) calendar days per license without prior written consent from Velaro. Attempts to circumvent this limitation, including by altering user identification or other means, shall be considered Unauthorized Use and subject to remedies under this Agreement.
d. Usage Limits. Each Authorized Licensee’s permitted usage, including concurrent sessions, chat handling capacity, or other service-specific limits, shall be defined by the applicable license purchased and documented in Client’s purchase or agreement.
e. Unauthorized Use. Client and its Authorized Licensees agree to use the Licensed Services solely for the purposes contemplated by this Agreement and within the scope of purchased licenses. Unauthorized Use includes access or use of any Licensed Service not purchased or assigned, excessive or abusive usage that degrades service performance, or any use in violation of this Agreement or applicable law.
f. Protection Against Unauthorized Use. Client shall take reasonable precautions to prevent Unauthorized Use and promptly notify Velaro of any known or suspected Unauthorized Use. Client shall cooperate with Velaro to remediate such occurrences.
g. Audit Rights. During the term of this Agreement, Client shall keep reasonable records relating to its and its Authorized Licensee’s use of the Licensed Services and compliance with the licenses granted herein. Velaro may, upon reasonable notice and during normal business hours, but no more than once per calendar year, engage a chartered or certified public accountant to inspect Client’s records related to such use to verify compliance.
h. Data Retention and Monitoring. Velaro may collect and retain usage data and access logs to enforce license compliance and prevent abuse, including through technical means such as digital fingerprinting. Data retention periods depend on Client’s subscription package, with a default rolling retention period of three (3) months unless Client has purchased enhanced retention allowing up to two (2) years of data storage. Client consents to such data collection and monitoring by accepting this Agreement.
i. Client Privacy Obligations. Client acknowledges responsibility to comply with all applicable privacy laws and regulations concerning their use of the Licensed Services, including any obligations to notify end-users if chat interactions or other data are recorded, stored, or processed. Velaro disclaims responsibility for Client’s privacy compliance. Clients should review and update their own privacy policies to accurately reflect any data collection related to their use of the Licensed Services.
3. Restrictions.
You may not attempt to create or derive any of the source code or other technology or data within the Software by disassembly, reverse engineering or any other method, or otherwise reduce the Software to a human-perceivable form. You may not modify or translate any part of the Software. You may not use, disclose, distribute, in whole or in part, nor rent, lease or lend the Software without the prior written authorization of Velaro. You agree to provide notice to Velaro immediately after learning of or having reason to suspect a breach of any of the provisions set forth in this License.
4. Term and Termination
4.1 Effective date and initial cancellation: This Agreement becomes effective upon Client’s acceptance by electronically clicking through and installing the Software (“Effective Date”). If Client accepts solely via click-through without a separately signed agreement, Client may terminate within ten (10) days of the Effective Date by written notice under Section 4.6, provided no non-refundable setup services or fees have been incurred. If a separately signed agreement exists, this ten-day cancellation right does not apply.
4.2 Contract Term: The “Contract Term” means the binding duration of Client’s subscription commitment as specified in any separately signed agreement referencing this Agreement. If no such signed agreement exists, the Contract Term shall be twenty-four (24) months from the Effective Date. The Contract Term automatically renews for successive twenty-four (24) month periods unless terminated in accordance with Section 4.6. Billing frequency (monthly, quarterly, annually, or otherwise) is solely a payment schedule and does not create, shorten, or extend the Contract Term.
4.3 Month-to-month agreements: Only subscriptions expressly designated in writing by Velaro as “month-to-month” are treated as month-to-month agreements. The fact that Client is billed monthly, or pays monthly, does not create a month-to-month agreement. For true month-to-month agreements, Client may terminate upon thirty (30) days’ prior written notice before the next monthly billing date. All other subscriptions, including those billed monthly but tied to a multi-month or multi-year Contract Term, remain subject to Sections 4.2, 4.4, and 4.5.
4.4 Renewal: At the expiration of the Contract Term, this Agreement shall automatically renew for a Renewal Term equal in length to the expiring Contract Term, unless Client provides valid written notice of non-renewal in accordance with Section 4.6. For purposes of this Agreement:
• The “Renewal Date” means the first calendar day immediately following the expiration of the then-current Contract Term, which is the commencement date of the Renewal Term.
• The “Notice Deadline” means sixty (60) days before the Renewal Date, unless a different written notice period has been expressly agreed in writing.
• The “Obligation Date” means the first calendar day immediately following the Notice Deadline. If Client has not delivered valid written notice by the Notice Deadline, the Agreement shall be deemed irrevocably renewed as of the Obligation Date, and Client is contractually bound to the full Renewal Term, regardless of the timing of invoicing or service commencement.
Client’s obligation for the Renewal Term accrues as of the Obligation Date. Invoicing or commencement of service delivery as of the Renewal Date are performance mechanics only and do not affect the binding renewal obligation.
4.5 Early termination liability: Client’s payment obligations for each Contract Term and Renewal Term are binding and non-cancelable. If Client terminates before the end of a Contract Term other than as permitted under Section 4.7, all amounts owed under this Agreement, including any unpaid balances previously invoiced and all fees for the entire unexpired portion of the Contract Term, whether or not invoiced, shall become immediately due and payable in full as of the effective date of termination. The parties acknowledge that Velaro incurs significant costs at the outset and throughout the Contract Term, including but not limited to onboarding, account management, technical support, infrastructure capacity, and allocations of software and personnel resources, all of which are committed in reliance on the Client’s full-term subscription. Because the actual damages resulting from early termination would be difficult or impossible to calculate with precision, the acceleration of remaining fees represents a reasonable approximation of the losses Velaro will suffer and is not a penalty. All such accelerated amounts are due without delay and are payable immediately, provided that Velaro may as a courtesy permit payment to be remitted within two (2) business days of termination. Non-use of the Software or services does not suspend or relieve payment obligations. No set-off, offset, credit, or deduction of any kind shall reduce the amounts due under this Section.
4.6 Non-renewal and valid written notice: To avoid automatic renewal, Client must deliver valid written notice of non-renewal no later than the Notice Deadline. “Valid written notice” means a written communication sent by email to billing@velaro.com that clearly states Client’s intent not to renew the Agreement. Notice is deemed delivered only upon Velaro’s system log confirming successful receipt at billing@velaro.com. Velaro will provide written acknowledgment of receipt as an administrative courtesy, but acknowledgment is not required for notice to be valid. Notices sent to any other address or by any other means are invalid and ineffective.
4.7 Termination for cause: Either party may terminate for material breach by written notice describing the breach. The breaching party has thirty (30) days to cure after receipt. If the breach is not cured within the cure period, termination becomes effective at the end of that period. Termination for cause does not relieve Client of its obligation to pay all fees accrued or committed for the Contract Term unless Velaro is the breaching party and fails to cure, in which case Client remains responsible for fees through the effective termination date only. Velaro may suspend access for non-payment; fees continue to accrue during suspension.
4.8 Upgrades and extensions: If Client adds products, modules, or users during a Contract Term, the Contract Term extends by an additional period equal to the original Contract Term. Pricing concessions and reserved capacity are conditioned on a full-term commitment across all purchased services. Example: a Client with a twenty-four (24) month Contract Term adds fifty (50) users at month twelve (12). The Contract Term extends to thirty-six (36) months from the Effective Date so all services, including the added users, receive consistent pricing and capacity for a full term rather than a partial period. This extension is required because pricing concessions and capacity allocations are based on full-term commitments, not partial periods.
4.9 Post-termination obligations: Upon termination or expiration, Client shall uninstall all Software, destroy all copies, and remove all Velaro-related code from applicable websites.
5. Disclaimer of Warranties.
a. VELARO DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SOFTWARE AND YOUR EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO VELARO. YOU AGREE THAT VELARO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE.
b. Velaro shall not be liable to you nor deemed to be in default of this Agreement, on account of any delays, errors, malfunctions, compatibility problems or breakdowns with respect to the Software, unless such delay, error, malfunction or breakdown results solely from the gross negligence or willful misconduct of Velaro.
c. You acknowledge that the installation or use of the Software on your communications hardware (including peripherals) or software may result in loss of or damage to your hardware, software or data. You agree to take all reasonable precautions to prevent such loss and damage, including copying data prior to installation and other reasonable and customary measures, and adherence to manufacturer’s instructions. You further agree to release and hold Velaro and its past and present directors, affiliates, partners, officers, employees, agents and contractors harmless from and against any losses, damages, liabilities, suits or fines caused by or arising from the installation or use of the Software or the communications hardware (including peripherals) or any other similar hardware or software utilized to permit access to the Software.
6. Velaro’s total cumulative liability in connection with this Agreement and the Software, including any associated Exhibits, whether in contract or tort or otherwise, will not exceed the amount of License Fees paid or payable to Velaro for the most recent one-year period prior to the event giving rise to such liability.
7. Controlling Law, Jurisdiction, and Attorney’s Fees. This Agreement is governed by the laws of the State of California, without regard to its conflict of law principles. The parties agree that any disputes arising out of or related to this Agreement shall be resolved exclusively in the state or federal courts located in Los Angeles County, California, and waive any objections to personal jurisdiction, venue, or forum non conveniens. If any part of this Agreement is found unenforceable, the remaining provisions shall remain in effect to the fullest extent permitted by law, and the unenforceable provision shall be modified as necessary to reflect the intent of the parties while remaining enforceable. Attorney’s Fees: The prevailing party in any dispute, whether through litigation or arbitration, shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses, including expert witness fees, in addition to any other relief granted. A party is deemed prevailing if it secures substantially the relief sought, whether by judgment, arbitration award, or settlement.
Our Right to Elect Arbitration: Any dispute shall be litigated in court unless we, at our sole discretion, choose to require arbitration. If we elect arbitration, the dispute shall be submitted to JAMS in Los Angeles, California, and conducted remotely under JAMS’s then-current commercial arbitration rules. Once arbitration is elected, the other party must comply and waives any right to object. Arbitration will be conducted before a single arbitrator. The arbitrator’s decision will be final, binding, and enforceable in any court of competent jurisdiction. By entering into this Agreement, the other party waives any right to: demand arbitration unless we elect it, a jury trial if arbitration is chosen, appeal an arbitration decision.
8. Price and Payment
This section is relevant for any Client not currently utilizing the free ten (10) day trial. Any usage outside the ten (10) free days will constitute Client as a subscription Client. Client shall pay to Velaro yearly, quarterly, monthly, or other payment periods as specified in any signed agreement or as elected during purchase, in advance, the set license fees pursuant to this Agreement. All subscription term lengths are recurring for the specified Contract Term or Renewal Term as defined in Section 4. Client agrees and expressly authorizes Velaro, or its designated billing agent, to automatically bill Client’s credit card on a continual basis prior to each billing period start. Charges may be processed up to thirty (30) days in advance of the start of any billing period, or at any time during the applicable billing period, at Velaro’s discretion. Credit card payments are due on receipt. For Renewal Terms, Client acknowledges and agrees that the obligation to renew accrues as of the Obligation Date defined in Section 4.4. Renewal charges may be processed on or after the Obligation Date, regardless of when the Renewal Term commences or services for that term are delivered. If the Agreement is in force on the first day of any billing period, Client’s credit card will be charged the then-applicable set license fees for such billing period. All amounts owed under this Agreement, including unpaid balances previously invoiced, uninvoiced fees accrued, Renewal Term charges, usage-based fees, and all accelerated fees under Section 4.5, shall be considered valid and immediately due and payable in full. Velaro may, as a courtesy, permit up to two (2) business days for remittance, but no net terms apply to credit card payments. If you have questions about charges to an account, you should contact Velaro at billing@velaro.com or by using the corporate headquarter address of 1234 N La Brea Ave Suite 508, West Hollywood, CA 90038. All charges are considered valid unless Client disputes the charge in writing within thirty (30) days of the billing date. No adjustments will be made for charges that are more than thirty (30) days old. Velaro may make arrangements to invoice Client monthly, quarterly, yearly, or other payment cycles for agreements valued over $5,000 monthly, in advance, the set license fees pursuant to this Agreement. All one-time flat rate service invoices must be paid on or before the service start date elected. Failure of Velaro to issue any invoice or bill shall not relieve Client of the obligation to pay for any charge owed Velaro pursuant to this Agreement.
8.1. Invoices and payment terms: Velaro may issue invoices in accordance with the billing frequency set forth in this Agreement or any signed order form. Invoices may be dated up to thirty (30) days in advance for accounts on immediate or short-term payment terms, and up to the number of days in advance that corresponds to any longer negotiated net payment terms (for example, up to forty-five (45) days in advance for net forty-five, or up to ninety (90) days in advance for net ninety). Unless otherwise stated in writing on the invoice, invoiced payments are due on receipt of the invoice date. The timing of invoice issuance shall not relieve Client of its obligation to pay all fees owed under this Agreement. Provided that the invoice is timely received, If Client fails to pay any amount when due, Velaro may levy a late payment charge computed at the rate of one and one-half percent (1.5%) per month on the outstanding balance, or the maximum rate permitted by applicable law, whichever is lower, for each month or fraction thereof that such payment remains unpaid. Client shall pay all sales, use, personal property, excise, license and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with access to the Application. Velaro reserves the right to increase any charge to Client under this Agreement once per calendar year upon not less than thirty (30) days prior written notice to Client. Each such increase may be applied at the start of a billing period, but no more than once per calendar year, except where increases result from Client-initiated upgrades, downgrades, or reconfigurations. Outside of Client-initiated changes, each such increase shall be limited to eight percent (8%). Client will not set-off or offset against Velaro’s invoices amounts that Client claims are due to it. Client will bring any claims or causes of action it may have in a separate action and waives any rights it may have to offset, set-off, or withhold payment for Application licenses delivered by Velaro. Since each upgrade to user count, plan change or feature set will renew the Contract Term and billing cycle dates for the entire Agreement, any prorated unused credits due from the previous billing term will be applied as a credit toward the renewed Agreement balance that may be due. Discounts for upgrades are granted on a tiered schedule, thus the net per-user purchase pricing for purchases prior to any upgrade will remain unchanged. To receive volume pricing, upon each upgrade, Client must keep total of licenses, plan package or feature set for a period of no less than twenty-four (24) months (or longer if specified in signed contract) before a downgrade is permitted. If minimum requirements were negotiated to obtain volume pricing and stated in invoice terms, then those agreed upon minimum requirements must be maintained upon renewal to continue receiving pricing incentives. Unless the volume pricing or pricing discounts are renegotiated before term renewal, discounts may expire after promotional period.
Downgrades. Downgrade requests, including reductions in user count, plan package, or feature set, may only be made in connection with a Renewal Term and only if submitted as valid written notice prior to the applicable Obligation Date defined in Section 4.4. Any approved downgrade shall not be effective unless and until Velaro expressly approves the request in writing and the parties execute an amendment to this Agreement, which shall then take effect as of the Renewal Date. Downgrades are subject to Velaro’s sole discretion, applicable plan structures, and then-current pricing. Velaro makes no guarantee that prior discounts, packages, or pricing tiers will remain available. For avoidance of doubt, once the Obligation Date has passed, Client is contractually bound to the full Renewal Term, and no downgrade shall be permitted during the Contract Term. In no event shall the pricing for a Renewal Term fall below the then-current contract value immediately preceding the Renewal Term, and Velaro may adjust Renewal Term pricing upward to reflect then-current rates. Service order and commitment will renew automatically to prevent service disruption, preserve pre-allocated resources, and maintain pricing concessions unless Client delivers valid written notice of non-renewal in accordance with Section 4.6 at least sixty (60) days before the Renewal Date. Any upgrades to account will extend the Contract Term by a period equal to the then-current Contract Term or as otherwise specified in any signed agreement.
9. Velaro Technical Standard Support Service Level.
Velaro will provide telephone technical support to Client’s Authorized Licensees from 9 a.m. to 8 p.m. Eastern Standard Time (ET), Monday-Friday (“Weekdays”) of each week of this Agreement. Velaro will provide on call support with one hour or less response time 24 hours per day if client subscribes and elected the premium support. In addition, Velaro will respond to any electronic mail queries within 24 hours of receipt by Velaro during regular business days.
Client acknowledges that Velaro does not agree to provide, and will not provide, any “help desk” assistance or similar user or technical support to Client’s customers with regard to the Application.
Client agrees that it will notify its customers that Velaro does not provide such support, and Client shall be solely responsible for all such support for the benefit of its customers.
Velaro has established set maintenance windows on Monday and Friday mornings between the hours of 2 a.m. and 6 a.m. ET (“Pre-established Maintenance Window”). During the Pre-established Maintenance Window, Velaro reserves the right to take down a Client’s server(s) in order to conduct routine maintenance checks to both software and hardware. If a Client’s server(s) will be down for more than two (2) minutes within the Pre-established Maintenance Window, Velaro will advise Client of such prior to any scheduled maintenance downtime. Velaro will not be responsible for damages or costs incurred by Client, if any, for scheduled down time during the Pre-established Maintenance Window. Velaro reserves the right to change the Pre-established Maintenance Window upon prior notice to Client.
10. Complete Agreement.
This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, except in the cases where a mutually signed non-expired agreement links directly to this Agreement, this Agreement will serve as additional agreed upon licensing terms.
