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. Termination and Term.
This Agreement shall become effective upon Client’s indication of acceptance by electronically accepting and installing the Software (“Effective Date”). Client may terminate this Agreement within ten (10) days of the Effective Date if Client disagrees with its terms, unless a separately signed non-expired agreement linking to this Agreement exists.
The Contract Term shall be as specified in any separately signed agreement between the parties referencing this Agreement. If no such signed agreement specifying the term exists, the Contract Term shall be a minimum of twenty-four (24) calendar months from the Effective Date.
If Client selects an online plan during purchase, the Contract Term will be noted in Client’s selection and shall govern the length of the commitment.
All subscriptions, regardless of billing frequency (monthly, quarterly, yearly, or other), are subject to the Contract Term specified herein or in a separately signed agreement. For example, a twenty-four (24) month Contract Term paid monthly remains a twenty-four (24) month commitment.
Thereafter, this Agreement shall be automatically extended for additional terms equal in length to the then-current Contract Term or as otherwise specified in any signed agreement (“Renewal Term”), unless earlier terminated by either party upon timely written notice as set forth below.
Client acknowledges and agrees that this Agreement, including any separately signed agreement referencing or linking hereto, constitutes the entire agreement governing Client’s use of the Application and related services. In the event of any conflict between this Agreement and a separately signed agreement, the terms of the separately signed agreement shall govern solely to the extent of the conflict. For all other matters, this Agreement shall govern without ambiguity. The Client represents and warrants that only individuals with binding legal authority may accept or amend this Agreement on Client’s behalf, and use of the Application by any individual without such authority shall be deemed unauthorized.
For agreements with monthly billing (“Monthly Billing Term”), Client may terminate upon providing at least thirty (30) days prior written notice before the next monthly billing date. Cancellation notice received less than thirty (30) days before the next monthly billing date will result in Client owing one additional full month’s subscription fees.
For agreements with fixed Contract Terms (“Fixed Contract Term”), Client must provide at least sixty (60) days prior written notice before the expiration of the then-current Contract Term to avoid automatic renewal. Cancellation notice received less than sixty (60) days prior to renewal will result in Client owing all fees for the subsequent full Contract Term.
If Client terminates other than for cause before the end of a Contract Term, Client agrees to pay all remaining monies owed for the entire unexpired Contract Term immediately upon termination.
Termination for Cause and Cure Period. Except as otherwise provided herein, neither party may terminate this Agreement for cause unless the terminating party provides written notice specifying the nature of the alleged material breach. The party alleged to be in breach shall have thirty (30) calendar days from receipt of such notice to cure the breach to the reasonable satisfaction of the non-breaching party. Termination for cause shall not be effective prior to expiration of the cure period. If the breach is not cured within the cure period, the non-breaching party may terminate by written notice. Velaro may temporarily disable the Software for non-payment without termination. Charges will continue to accrue during such suspension. Velaro may terminate immediately without cure opportunity for violations of intellectual property rights, bankruptcy, insolvency, or similar proceedings. Upon termination for cause, all payments owed shall be immediately due and payable.
Liquidated Damages. Client acknowledges Velaro allocates significant resources in advance based on Client’s contracted usage and license levels. Because actual damages from early termination are difficult to ascertain, the parties agree that liquidated damages equal to all remaining unpaid fees for the entire unexpired Contract Term at full undiscounted rates represent a reasonable pre-estimate of damages and not a penalty. Such liquidated damages shall be immediately due and payable upon termination.
Each renewal or upgrade shall extend the Contract Term by an additional period equal to the length of the then-current Contract Term as specified in any signed agreement or the initial term if no such agreement exists. For example, if the Contract Term is twenty-four (24) calendar months and Client upgrades twelve (12) months into that term, the Contract Term shall be extended by an additional twenty-four (24) months, resulting in a total Contract Term of thirty-six (36) months from the original Effective Date. If a separately negotiated signed agreement specifies a different Contract Term length (e.g., sixty (60) months), then each renewal or upgrade shall extend the Contract Term by that specified period accordingly. This extension is necessary because Client receives pricing discounts and other benefits conditioned on maintaining the full Contract Term.
Upon termination, Client shall destroy or uninstall all copies of the Software and remove all Velaro related code 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 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 10 day trial. Any usage outside the 10 free days will constitute customer 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 authorizes Velaro or its agent to automatically bill Client’s credit card on a continual basis prior to each billing period start. 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. 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, 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. If Velaro invoices Client for 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 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. This requirement is not necessary if discounts are waived by Client. 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 Client notifies Velaro at least sixty (60) days prior to the Renewal Term. 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.
