VELARO INCORPORATED ONLINE SOFTWARE LICENSE AGREEMENT. Updated 2/6/2023
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. If you accept this License, Velaro hereby licenses to you one electronic copy of the computer program you are about to install, or services accessed via a web browser or desktop application, and related documentation (the "Software") for each Authorized License purchased. Velaro grants a non-exclusive, non-transferable (except where expressly provided) License to provide the Client access to the Application from the Web Site through an interchange address and one or more terminal addresses, and Client accepts such access, all according to the terms set forth herein. Subject to the terms and conditions of this Agreement, Velaro grants a non-exclusive, non-transferable (except where expressly provided) License to provide the Client access to the Application from the Web Site through an interchange address and one or more terminal addresses, and Client accepts such access, all according to the terms set forth herein.
a. Individual Named License. Subject to the terms and conditions of this Agreement, the Client may grant each Authorized Licensee an Individual Named License to provide the Authorized Licensee through an interchange address and one or more terminal addresses as long as there is no more than a total of 2 (two) sessions, both consisting of the same Individual Named License, of which 1 (one) may arise of a unique interchange address on a desktop session and the second from a mobile based application, this Agreement and Client accepts such access, all according to the terms set forth herein.
b. Unique Login Identification. Each Authorized Licensee, subject to an Individual License, will be assigned a Unique Login Identification Name and Password. Each Authorized Licensee is permitted to handle up to a maximum of 4 synchronous based chats at any one time. Only Online Users may manage chats or be logged in to the system.
c. Unauthorized Use. Client and its Authorized Licensees agree that the Application will be used solely for the purposes and functions contemplated by this Agreement. Client agrees that it will limit its access to communications between its Authorized Licensee’s and Client’s customers and for no other purpose. Unauthorized Use shall include, but is not limited to, generation of message activity with the Application of such speed or volume that may lead to malfunctions or degradation of the Application’s performance. Client acknowledges that access is provided hereunder solely for the purposes set forth herein.
d. Protection against Unauthorized Use. Client acknowledges that the Application and any Confidential Information or other materials furnished to Client by Velaro involve valuable proprietary rights of Velaro. Client shall take appropriate steps and precautions for the protection of the Application. Without limiting the generality of the foregoing, Client will use its best efforts to prevent any Unauthorized Use and immediately notify Velaro in writing of any Unauthorized Use that comes to Client’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Application directly or indirectly through Client or any of its sub-licensees or any of their employees, agents, representatives, or contractors, Client will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the Application in the possession or control of the person or entity engaging in such Unauthorized Use. Client will provide to Velaro such cooperation and assistance related to any such Unauthorized Use as Velaro may reasonably request.
e. Proprietary Rights. The Software and all parts thereof are the subject matter of various proprietary rights, including without limitation copyrights, trade secrets, patents and other similar intellectual and industrial property rights. This License permits you to use the Software and to make copies and install the Software as necessary in unmodified form for your internal use of the Software in accordance with this Agreement. You may not, however, sell or derive any profit from such distribution or installation. No license, right or interest in any trademark, trade name or service mark of Velaro or any third party is granted under this License. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of the content of the Software, including without limitation, or any works, inventions, discoveries, technology, or other items which are the subject matter of Velaro's Proprietary Rights or otherwise to use or exploit the Software or the Proprietary Rights in any matter not expressly permitted herein. Velaro retains all right, title and interest in and to the Software.
f. High-Risk Activities. The Application is not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. Customer agrees not to use or allow the Authorized Licensees to use the Application for or in connection with any such high-risk activity.
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 Application and its compliance with the License and Individual License granted herein. A chartered or certified public accountant selected by Velaro may, upon reasonable notice and during normal business hours, but no more often than once a year, inspect Client’s records related to such use.
h. Data Retention. Our privacy page contains more information on how your data may be used, located here: https://velaro.com/privacy-policy/. Velaro provides additional services available to purchase for offloading data to client owned data stores, exporting in real-time to secure stores, custom schedules, and other compliance measures (ex. partial data storage) to meet specific client needs. Unless client has purchased a separate data retention package, the application will only retain data at a default on a rolling bases for the last 2 current years of an active subscription. Client is responsible for setting the retention threshold using the available standard timeframes available within the application, otherwise Velaro makes no guarantee that data may be stored beyond the standard timeframes.
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. Termination and Term. This Agreement shall become effective upon your indication of acceptance by electronically indicating acceptance and installing the Software (“Effective Date”). You may terminate this Agreement within 10 days of the Effective date if you disagree with the terms of this Agreement unless you already have a signed non-expired agreement that links to this agreement. This Agreement shall remain in effect for a period of one year or (multi-year if there is a separate negotiated signed contract connected to these terms) after the Effective date. Thereafter, it shall be automatically extended for additional one-year terms or (multi-year if there is a separate negotiated signed contract connected to these terms) ("Renewal Term") unless earlier terminated by either party upon not less than thirty (30) days prior written notice to the other to the Renewal Term. If you terminate the Agreement other than for cause as defined below before the end of a Term then at the time of termination you agree to pay all remaining monies owed for entire remaining period of the contract term.
As long as you have made timely payments and are not in breach of the Agreement, you may terminate for cause if Velaro fails to perform its duties under the Agreement within 30 days of your notice to Velaro that it is in breach of a material term. Velaro may terminate this Agreement for cause if you fail to make timely payments within 10 days of notice of delinquency by Velaro. Velaro may also disable the Software temporarily in the case of nonpayment, which shall not be considered a termination by Velaro. Charges will still accrue even if your service is temporarily suspended for non-payment. Velaro may also terminate this Agreement if you fail to comply with your duties under the Agreement within 30 days of notice to you that you are in breach. Velaro may also terminate the Agreement immediately if you violate its intellectual property rights or seek bankruptcy protection or similar relief from creditors, or if bankruptcy proceedings are imminent or initiated by any other party. In any termination for cause, all payments owed shall be immediately due and payable.
Upon termination, you must destroy (or permanently uninstall) all copies of the Software and remove all Velaro related HTML, Java script(s), and web code inclusions of any type (i.e. IFRAME, etc.) relating to Velaro entirely from all 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 AGAISNT 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 and Interpretation. This License shall be governed by and construed in accordance with the laws of the State of California, notwithstanding the conflicts of law provisions of that state or any other jurisdiction. All disputes arising out of this License shall be subject to the exclusive jurisdiction of the federal and state courts located in Los Angeles, California. If any part of this Agreement is deemed unenforceable for any reason, that provision and the remainder of the Agreement shall be interpreted to the greatest extent allowable by law to give the provision and the Agreement as a whole the fullest effect intended under the law. In any dispute resolution proceeding between the parties in connection with this Agreement, as one who receives a net judgment of at least 75% of its alleged damages (the "Prevailing Party"), shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.
The parties agree that any dispute arising from this agreement shall be litigated in the Superior Court for the State of California, Los Angeles County, pursuant to California law, regardless of any venue selection or choice of law rules, regulations, or statutes stating otherwise, and hereby consent to that jurisdiction and venue. To the extent either party, in their discretion, finds court litigation to be burdensome, either party may elect to have this matter submitted to binding arbitration before the Los Angeles office of JAMS, to be conducted remotely by video conference pursuant to JAMS’s standard commercial rules in force at the time of submission of this matter to arbitration, which rules are incorporated herein by reference as if set forth in their entirety. Any arbitration shall proceed with a single arbitrator to be mutually selected by the parties, or, to the extent the parties cannot agree on a mediator, to be selected pursuant to JAMS’s standard commercial rules. In the event either party elects to proceed by arbitration, the party receiving that arbitration demand shall and hereby does consent to arbitration, and to waive any right to trial by jury, and any right to appeal the result of the litigation and/or arbitration they may otherwise have. The decision of the arbitrator will be legally binding for both parties and may be enforced in any court of competent jurisdiction and any arbitration award can be entered as a judgment in any state.
8. Price and Payment. This section is relevant for any Client not currently utilizing the free 10 day trial. Any usage outside the 10 free days will constitute customer as a subscription Client. Client shall pay to Velaro yearly (or for payment period initially selected for on Velaro website as monthly payment options may have been offered at increased pricing), in advance, the set license fees pursuant to this Agreement. Although your elected billing period may have been yearly or monthly, all subscription term lengths are recurring yearly (or multi-year if there is a separate negotiated signed contract connected to these terms) as specified in the Termination and Term section. Client agrees and authorizes Velaro or its agent to automatically bill Client’s credit card on a continual basis each year (or multiyear or Monthly if that option was elected and available), 3-5 days in advance prior to the original subscription start day of the first month of the next billing period, the set license fees pursuant to this Agreement. If the Agreement is in force on the 1st day of any billing period, Client’s credit card will be charged the then-applicable set license fees for such billing period. 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 30 days of the billing date. No adjustments will be made for charges that are more than 30 days old.
Velaro may make arrangements to invoice Client monthly or yearly 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. If Velaro invoices Client for the monthly set license fees, Client shall pay all fees and other charges within fifteen (15) days of the date of each invoice unless other terms have been negotiated in advance and are clearly stated on the invoice. Invoices shall be dated no earlier than the first day of the month before the quarter for which the invoice applies. Provided that the invoice is timely received, in the event that Client fails to pay within fifteen (15) days of an Invoice, Velaro may levy a late payment charge computed at the rate of 1 1/2% per month on the outstanding balance due hereunder from any month or fraction thereof that such payment is in default. 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 each calendar year upon not less than thirty (30) days prior written notice to Client. Outside of Client initiated upgrades, each such increase shall be limited to eight (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 yearly (or multi-yearly if negotiated in signed contract) term commitment 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 one year (or longer if specified in signed contract) before a downgrade is permitted. This requirement is not necessary if discounts are waived by customer. 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.
Service order and commitment will renew automatically to prevent service disruption unless notifying Velaro 30 days prior to the Renewal Term. Any upgrades to account will renew yearly (or multi-year contract if there is a separate negotiated signed contract connected to these terms) contract.
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.
