Veelo, Inc., an Oregon corporation (“Veelo”) offers a knowledge management system (the “System”) that includes applications for creating, distributing, monitoring and reporting on user progress and other content and materials.
The terms and conditions of this Agreement (the “T&Cs”) set forth the Customer’s rights and obligations with respect to the System. All capitalized terms that are not defined in these T&Cs will have the meanings assigned to them in the Order Sheet.
1) License. Subject to the T&Cs, Veelo grants to Customer for the Initial Term and any Renewal Terms (as defined below) a limited, non-transferable, non-exclusive license to access and use the System and to access, tailor and incorporate any sample forms, policies, guidelines, FAQs, reference materials, and training materials (the “Sample Content”) for use on the System. Customer agrees to be bound by the T&Cs by signing the accompanying Order Sheet.
2) Authorized Users. Only Customer’s employees or select other individuals granted approved access by Customer, such as board members or third-party providers who have been informed of these T&Cs and agree to be bound by them (collectively ”Authorized Users”), may have access to and use the System. Customer will ensure that each Authorized User complies with the T&Cs of this Agreement.
3) Restrictions. Customer and Authorized Users will not (a) sell, sublicense, rent, lease, loan, distribute or otherwise transfer their right to access and use the System, including Sample Content and any other text, graphics or content included in the System; (b) use the System to process the data of any other person; (c) allow anyone other than Authorized Users to access and use the System; (d) reverse engineer, decompile, disassemble or otherwise attempt to obtain source or object code for the System; (e) use the System to conduct any illegal activity or other activity that infringes on the rights of others, (including any privacy or publicity rights); (f) violate any third party, licenses, copyrights or other intellectual property rights; (g) remove Veelo trademarks and acknowledgements of development; (h) remove any copyright, confidentiality or other proprietary rights notices from the Veelo Content or from notices on the System or on any materials printed or exported from the System; (i) compete with Veelo by developing, investing in, or assisting in the development of, a competing product; (j) commit acts that cause damage or injury to Veelo or any of Veelo’s customers; (k) host Sample Content outside of the System; IT IS CUSTOMER’S SOLE RESPONSIBILITY TO USE THE SYSTEM IN COMPLIANCE WITH ALL APPLICABLE COPYRIGHT LAWS. Except as expressly permitted in these T&Cs, Customer will not copy or modify, and will ensure that no Authorized User copies or modifies, the Sample Content.
4) Invoicing & Payment. Customer will pay all amounts due as described on the Order Sheet for the Initial Term and any Renewal Term. Unless the system implementation is delayed due to reasons caused by Veelo in no event will initial invoicing lapse beyond the Initial Invoice Date. Customer will receive no refunds for an early cancellation of this Agreement, except where cancellation results from Veelo’s nonperformance under this Agreement. Any payment not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer will pay all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to any products or services provided under this Agreement except for taxes based on Veelo’s net income or gross receipts.
5) Ownership of Intellectual Property. Customer owns the following Customer Content and Data (collectively, the “Customer IP”): (a) all trademarks, text, graphics, images and domain names Customer provides to Veelo, and all original content created by Customer not derived from Sample Content (the “Customer Content”); and, (b) all data collected or generated by the System with respect to Customer’s business operations and the Authorized Users, including their names, addresses, and employment information (the “Data”). Veelo and its licensors own the System, the Sample Content and all other intellectual property associated with the System (the “System IP”) (collectively, the “Veelo IP”).
6) Acceptable Use of the System. Customer will not, and will ensure that the Authorized Users do not: (a) transmit any material that (i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, objectionable or libelous or promotes such activities; (ii) infringes any patent, trademark, trade secret, copyright, or violates any other person’s privacy or publicity rights (iii) violates any contractual or fiduciary relationship; (iv) contains software viruses, Trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, including through denial of service attacks; (v) circumvents any “copy-protect” devices; or (vi) contains any network monitoring programs, packet sniffers or otherwise intercepts any data; (b) provide inaccurate, incomplete, outdated or misleading registration information; (c) attempt to circumvent authentication or security protections or otherwise gain unauthorized access to the System, the Veelo Content, the Data or any computers, servers or networks connected to the System; (d) send unsolicited emails; (e) intentionally or inadvertently violate any federal, state or other applicable law or regulation; (f) disclose Customer’s account number or any passwords by telephone to any unknown caller even if the caller claims to be associated with Veelo.
7) Customer’s Obligations & Veelo’s Right to Audit. Customer will at its sole cost and expense (a) select, purchase, install and maintain the hardware, software, peripherals and power necessary to access the Internet and the System; (b) be responsible for any breach of this Agreement by any of the Authorized Users or any other person; (c) assign Authorized Users a unique password and instruct them on the importance of maintaining the confidentiality of those passwords; (d) carefully safeguard its account number and password records. Customer is solely responsible for all activities that occur under Customer’s account, and agrees to immediately notify Veelo of any unauthorized use of Customer’s account or any other breach of security. If anyone accesses the System, any Veelo IP or any Customer IP, without Customer’s authorization, Customer will indemnify, defend and hold Veelo harmless from all costs, expenses losses and damages related to that access and in addition, will pay the appropriate license and subscription fee for each such person at Veelo’s then current rates. The total number of Authorized Users is listed on the Order Sheet or on any subsequent renewal invoice(s). To the extent the number of Customer’s Authorized Users increases or decreases by the lesser of 10% or 50 employees during any then current Initial Term or Renewal Term, Veelo may notify and invoice Customer or, in the case of a decrease, credit Customer for, the changes in the Seat count (the “Seat Count Adjustment”) during the year as follows. If invoiced, the Customer will pay the Seat Count Adjustment charge for each Authorized User at the then current per user billing rate. For any Seat Count Adjustment Credit, the credit amount will be applied to the next current Renewal Term. Any such charges or credits will be pro-rated for the then current Initial Term or Renewal Term of the Agreement. Customer grants Veelo the right to audit the use of the System to ensure compliance with this Agreement.
8) Confidentiality. Each party that receives Confidential Information, as defined below (the “Recipient”), agrees not to (a) use the Confidential Information of the other party (the “Disclosing Party”) except as contemplated by this Agreement or (b) disclose that Confidential Information to any other person except as necessary to perform the Recipient’s obligations under this Agreement or as required by law (and in that event, the Recipient will provide the Disclosing Party advance notice as is reasonable and practicable under the circumstances). If Veelo is required to respond to any subpoena, court order or other governmental mandate with respect to Customer’s Confidential Information, Customer will pay Veelo at its then current hourly rate for professional services. The term “Confidential Information” means all information, including as it may appear in the Recipient’s notes, summaries and compilations, except for information that: (a) as of the date of this Agreement is in the Recipient’s rightful possession; (b) is generally known to the public through no fault of the Recipient; (c) the Recipient developed without reference to the Disclosing Party’s Confidential Information; and (d) the Recipient receives from an unrelated third party without restriction and without breach of any obligation of confidentiality by that third party. Customer acknowledges that the Sample Content and all fees and charges related to the System are Veelo’s Confidential Information, and Veelo acknowledges that the Data is Customer’s Confidential Information.
9) Security. Upon Customer’s written request, from time to time during the Initial Term or any Renewal Term of this Agreement, Veelo will provide to Customer a current copy of its security measures and, if applicable, a copy of its third-party contractor’s security measures, which Veelo has in place to protect Data and Customer Content generated under this Agreement and stored in connection with the System. Customer understands that no security measures are invincible, that Customer will bear all risks associated with storing the Data and other Customer Content on the System and that neither Veelo nor its third-party contractors will be liable to Customer or any third parties for unauthorized access to or use of that Data or Customer Content.
10) Modifications and Updates. Veelo reserves the right to modify, change, update or discontinue any feature of the System at any time, including the availability of any database or any Sample Content. At Veelo’s sole discretion, Veelo may charge an additional fee for new versions, modules or Sample Content that provide new functions and features beyond those existing prior to the enhancements. However, Veelo will not change any Customer Content or charge any such additional fees without reasonable prior notice and without Customer’s prior written consent, with such consent being provided timely and not unreasonably withheld.
11) Term and Termination. This Agreement will be for an initial term beginning on the Effective Date and ending on the End Date as both are indicated on the Order Sheet (the “Initial Term”). The Agreement will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”) unless either party gives the other party at least 60 days prior written notice before the end of Initial Term or any Renewal Term. Either party may terminate this Agreement if the other party fails to cure any material breach within thirty (30) days after its receipt of written notice describing the breach in reasonable detail. Veelo may also immediately suspend or terminate this Agreement, without notice and without liability to Customer or any third party, if Veelo determines that Customer has breached Section 3 (Restrictions), Section 4 (Invoicing & Payment) Section 6 (Acceptable Use of the System) or Section 8 (Confidentiality).
12) Effect of Expiration or Termination. If this Agreement expires or terminates, all rights and licenses granted to Customer will immediately end and Customer’s right to access and use the System will cease. At Veelo’s option, and within 30 days of expiration or termination unless otherwise agreed to by both parties in writing, Customer either will return to Veelo all copies of the Sample Content, Veelo’s Confidential Information and any System IP or other Veelo IP in Customer’s possession or control, or will permanently destroy or disable that material. If this Agreement expires or terminates, within 30 days of such expiration or termination, unless otherwise agreed to in writing by both parties, Veelo will either deliver to Customer the Data and other Customer Content stored on Veelo servers, provide reasonable access to Customer to retrieve its Customer Content and Data during the 30 day period, or permanently destroy or disable that material upon Customer’s written request. Section 5 (Ownership of Intellectual Property), Section 8 (Confidentiality), Section 9 (Security), Section 13 (Disclaimers and Limitation of Liability), Section 17 (Miscellaneous) and Customer’s obligation to pay accrued charges and fees will survive the expiration or any earlier termination of this Agreement.
13) Disclaimers and Limitation of Liability.
NO WARRANTY REGARDING THE SYSTEM AND VEELO SAMPLE CONTENT. Although Veelo, its contractors and licensors attempt to deliver error-free software applications, occasional errors or omissions may occur in the System, or the System may from time to time be unavailable. Similarly, although Veelo, its contractors and licensors attempt to deliver accurate, up-to-date Sample Content, that Sample Content may not be suitable for use in one or more Customer situations. THE SYSTEM AND THE SAMPLE CONTENT ARE PROVIDED “AS IS.” NEITHER VEELO NOR ITS CONTRACTORS OR LICENSEES MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM OR SAMPLE CONTENT OR WARRANT THEIR ACCURACY, COMPLETENESS, PERFORMANCE, ADEQUACY, CURRENCY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VEELO DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED. TO USE OF THE SYSTEM OR THE SAMPLE CONTENT. VEELO’S ENTIRE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE RIGHT AND EXCLUSIVE REMEDY WILL BE LIMITED TO VEELO USING COMMERCIALLY REASONABLE EFFORTS TO CORRECT MATERIAL ERRORS OR OMISSIONS TO THE SYSTEM AND THE SAMPLE CONTENT. NEITHER THE SAMPLE CONTENT NOR ANY OTHER CONTENT PROVIDED BY Veelo, ITS CONTRACTORS AND LICENSORS, NOR VEELO’S PROVISION OF ANY CONSULTING OR OTHER SERVICES, CONSTITUTES LEGAL ADVICE, AND NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH CUSTOMER’S USE OF THE SYSTEM, THE SAMPLE CONTENT, VEELO’S CONSULTING OR OTHER SERVICES. IF CUSTOMER REQUIRES LEGAL OR OTHER PROFESSIONAL ADVICE, CUSTOMER SHOULD CONSULT ITS OWN LEGAL OR OTHER PROFESSIONAL ADVISORS. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT ANY SAMPLE CONTENT OR OTHER CONTENT IT ELECTS TO USE ARE APPROPRIATE FOR USE WITHIN CUSTOMER’S ORGANIZATION AND IN CUSTOMER’S JURISDICTION. TO ENSURE THOSE MATERIALS COMPLY WITH THE LAW OF THE APPLICABLE JURISDICITION, CUSTOMER IS ADVISED TO HAVE CUSTOMER’S LEGAL COUNSEL REVIEW THE SAMPLE CONTENT OR OTHER CONTENT BEFORE ITS USE.
IMPORTANT LIMITATION OF LIABILITY. IN NO EVENT WILL Veelo OR ITS OFFICERS, EMPLOYEES, CONTRACTORS OR LICENSORS BE LIABLE FOR LOSS OF DATA, LOSS OF USE, LOSS OF PROFIT, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, WARRANTY, OR ANY OTHER LEGAL THEORY. IN NO EVENT WILL Veelo, ITS OFFICERS, EMPLOYEES, CONTRACTORS OR LICENSORS’ CUMULATIVE AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO VEELO DURING THE THEN CURRENT INITIAL TERM OR RENEWAL TERM.
14) Professional Services. During Customer’s System implementation period Veelo’s professional services unit will assist Customer with the implementation, as further described and documented per Exhibit 1 of this Agreement. Customer’s standard implementation, i.e. “rollout”, period begins on the day of the rollout kickoff meeting and has a duration of up to two (2) days. Each additional day, as requested and approved by Customer, beyond the standard rollout period (and as stipulated on the Order Form) will be billed at $1,500 per day. In conjunction with the rollout, Customer will reimburse to Veelo actual out-of-pocket travel costs related to the on-site System implementation. These expenses include reasonable travel related charges, including economy class airfare, lodging, meals, and ground transportation. Customer will be responsible for all charges, including additional costs related to delays or rescheduling requested by Customer that results in actual additional costs incurred by Veelo. Examples include cancellation or penalty fees and increased airfare or lodging due to last-minute booking requirements. A Veelo professional services project manager will be dedicated to working with Customer’s internal project lead during the rollout process and will assist the Customer in developing goals and timelines for the rollout, scheduling meetings and determining necessary resources. Veelo will assist Customer with set-up and configuration services, including consulting with Customer regarding the look and feel of the System site, inserting content, including Sample Content selected by Customer, importing existing Authorized User information and setting up user groups and their access and use parameters. Veelo will train the Customer’s System administrators, provide training materials in electronic format and will assign a dedicated Veelo account manager to coordinate ongoing support, facilitate issue resolution, log enhancement requests and ensure timely response to Customer inquiries and requests. If the Customer fails to schedule the rollout of the System within forty-five (45) days of the Effective Date, professional services will automatically deploy the site using its best judgment and will send the Customer’s lead administrator their administration login credentials, with invoicing commencing on the Initial Invoice Date. Any additional services not listed above or as provided on the Order Form, such as creation or modification of any new or customized Paks beyond the standard Pak styling service included with the license agreement, will be provided by Veelo at $100 per Pak or, for custom development, at a rate of $150 per hour unless quoted otherwise.
15) Miscellaneous. a) Entire Agreement; Waiver; Amendments. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral. No waiver of any rights will be effective unless assented to in writing by both parties, and the waiver of any breach or default by either party will not constitute a waiver of any other breach or default. This Agreement may be amended only by a writing signed by both parties. b) Independent Contractor. Customer and Veelo are independent contractors. They are not partners, agents and have not entered into a joint venture relationship. c) Assignment. Customer may not assign this Agreement without Veelo’s prior written consent, and any attempt to assign this Agreement (by operation of law or otherwise) without Veelo’s written consent will be null and void. d) Choice of Law and Forum Selection. This Agreement will be governed by the laws of Oregon, without regard to its choice of law rules. Customer consents to the personal jurisdiction of and venue in Oregon courts located in Multnomah County and agrees not to initiate any legal action against Veelo in any other location. e) Attorneys Fees; Costs. In addition to any other relief, the prevailing party in any dispute arising under this Agreement will be entitled to all reasonable legal fees and costs. f) Force Majeure. A party is not liable under this Agreement for non-performance if the non-performance is caused by events or conditions beyond that party’s reasonable control, and provided the party makes reasonable efforts to perform its obligations under the circumstances. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This provision does not relieve Customer of its obligation to make any payments then owing. g) Severability. If any provision of this Agreement is held to be invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will not be affected. h) Headings; Interpretation. Section headings are for convenience only and will have no substantive meaning. The words “includes” and “including” are not limited in any way and mean “includes or including without limitation.” The word “person” includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. Both parties have had the opportunity to have this Agreement reviewed by their attorneys; therefore, any ambiguous provision will not be construed for or against either party. i) Counterparts; Signatures. This Agreement may be executed in multiple counterparts, all of which, when taken together, will constitute one single agreement between the parties. This Agreement may be delivered by facsimile or electronic transmission, in which case the signatures of the parties will be deemed to have the same effect as delivery of original signatures.