Last Updated: October 24th, 2023
IMPORTANT: Please read this Terms of Service Agreement (“Agreement”) before clicking the “accept” button, and/or using the Vooma, Inc. (“Vooma”) software-as-a-service product that accompanies or is provided in connection with this Agreement. By clicking the “Accept” button, and/or using the Vooma Service in any way, you and the entity that you represent (“Subscriber”) is unconditionally consenting to be bound by and is becoming a party to this Agreement with Vooma and you represent and warrant that you have the authority to bind such entity to these terms. If Subscriber does not unconditionally agree to all of the terms of this Agreement, use of the Vooma Service is strictly prohibited.
Please note that Vooma may modify or amend this Agreement at any time. When Vooma modifies or amends this Agreement it will update the last updated date above, and Vooma may send an email to the last email address provided by Subscriber to Vooma. Vooma may require Subscriber to provide consent to the updated Agreement in a specified manner before any further use of the Vooma Service is permitted. If Subscriber does not agree to any change(s) after receiving a notice of such change(s), Subscriber must stop using the Vooma Service. Otherwise, Subscriber’s continued use of the Vooma Service constitutes its acceptance of such change(s). Please regularly check this Agreement.
TERMS AND CONDITIONS
1. Definitions. As used in this Agreement:
1.1 “Connected Account” means any third-party platform connected to, or integrated with, the Vooma Service by or on behalf of Subscriber, such as transportation management systems (TMS), email systems, rating/pricing systems and scheduling automation platforms.
1.2 “Connected Account Data” means any data collected from, or provided by, any Connected Account.
1.3 “Order Form” means any order form for Vooma Service executed by both parties that references this Agreement.
1.4 “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the Vooma Service, which does not contain any personally identifiable information or Subscriber Data.
1.5 “Subscriber Data” means Connected Account Data, and any other data uploaded or transmitted to the Vooma Service by Subscriber.
1.6 “Users” means Subscriber’s employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the Vooma Service.
1.7 “Vooma Platform” means the technology, including AI and machine learning algorithms, used by Vooma to deliver the Vooma Service to Subscriber.
1.8 “Vooma Service” means the on-line service delivered by Vooma to Subscriber using the Vooma Platform as described in the OrderForm.
2. Vooma Service. Commencingas of the date set forth in the Order Form, subject to the terms and conditionsof this Agreement, Vooma hereby grants to Subscriber a non-sublicensable,non-transferable (except as provided in Section 12), non-exclusive sbscriptiontoaccess and use the Vooma Service by solelfor Subscriber’s internal business purposes.
3. Onboarding and Connected Accounts.
3.1 Connected Accounts. In order to access many of the features and functions of the Vooma, Service, Subscriber will need to link its Connected Accounts to the Vooma Service. By granting Vooma access to any Connected Account, (i) Subscriber represents and warrants that it is entitled to disclose any log-in information provided by Subscriber in connection therewith (if applicable) and/or to grant Vooma access to such Connected Accounts, (ii) Subscriber represents and warrants that it is in good standing with respect to such Connected Accounts, and (iii) Subscriber acknowledges that Vooma may access Connected Account Data so that it may be used in accordance with the terms of this Agreement. Subscriber further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. Vooma will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account.
3.2 Integrating Connected Accounts. Subscriber acknowledges and agrees that in order to properly onboard to the Vooma Service and make full use of features and functions of the Vooma Service, Subscriber will need to integrate or connect to Connected Accounts with the Vooma Service.
4. Subscriber’s Use of the Vooma Service.
4.1 Access and Security Guidelines. Each User will be provided access to and use of the Vooma Service through confidential account credentials. Subscriber will be responsible for all uses of its account, except to the extent caused by Vooma’s negligence. Subscriber will promptly notify Vooma of any unauthorized use or access to its account. User seats may not be shared amongst other Users.
4.2 Restrictions. Subscriber will not, and will not permit any User or other party to: (a) reverse engineer, disassemble or decompile any component of the Vooma Platform; (b) interfere in any manner with the operation of the Vooma Service, or the Vooma Platform or the hardware and network used to operate the Vooma Service; (c) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Vooma Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Vooma Platform; or (e) otherwise use the Vooma Service in any manner that exceeds the scope of use permitted under Section 2.
5. Fees, Payment and Suspension of Services. Subscriber will pay Vooma the fees for the Vooma Service as set forth on the applicable Order Form (“Fees”). Unless otherwise stated in the Order Form, all Fees are due within thirty (30) days of the date of receipt of Vooma’s invoice thereof. In the event Subscriber exceeds number of transactions for which applicable Fees have been paid, Subscriber will be invoiced for such overage in accordance with the overage fees set forth in the Order Form in arrears. Unless otherwise stated in an applicable Order Form, all subscription fees will be invoiced and payable in advance on a monthly basis, and any overage fees incurred for any prior month will be invoiced the following month. Subscriber may switch to a higher subscription tier at any point during the applicable Order upon payment of the additional Fees on a prorated basis. All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Vooma’s income. If Subscriber believes that Vooma has incorrectly billed Subscriber, Subscriber must notify Vooma no later than sixty (60) days after the due date on the first invoice in which the issue appeared. Vooma may increase the applicable Fees upon the commencement of any Renewal Order Term (as defined below) to our then-current rates upon at least forty five days written notice prior to the commencement of such Renewal Order Term. Vooma reserves the right (in addition to any other rights or remedies Vooma may have) to discontinue the Vooma Service and suspend Subscriber’s access to the Vooma Service if any Fees set forth in the applicable Order Form are more than thirty(30) days overdue until such amounts are paid in full. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information.
6. Ownership and Data.
6.1 Vooma Platform and Technology. Subscriber acknowledges that Vooma retains all right, title and interest in and to the Vooma Platform, including all algorithms, AI, language and visual models and improvements thereto,Integration Tools and all software and all Vooma proprietary information and technology used by Vooma or provided to Subscriber in connection with the Vooma Service (the “Vooma Technology”), and that the Vooma Technology is protected by intellectual property rights owned by or licensed to Vooma. Other than as expressly set forth in this Agreement, no license or other rights in the Vooma Technology are granted to the Subscriber. Subscriber hereby grants Vooma a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Vooma Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the Vooma Service. Vooma shall not identify Subscriber as the source of any such feedback.
6.2 Subscriber Data. Subscriber retains all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to Vooma a non-exclusive, worldwide, royalty-free and fully paid-up license to: (a) access and use Subscriber Data to provide the Vooma Service to Subscriber; and (b) use Subscriber Data on an aggregated and anonymized basis to improve the Vooma Service; provided, that, the license grant in subpart (b) shall be perpetual and irrevocable. Subscriber represents and warrants that it has all necessary rights to grant Vooma the foregoing licenses.
6.3 Performance Data. Vooma retains all right, title and interest in and to the Performance Data, and may use Performance Data for any lawful purpose.
7. Term and Termination.
7.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one(1) year (the “Initial Order Term”), and will automatically renew for successive one (1) year terms (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term.
7.2 Termination. Either party may terminate this Agreement upon written notice if: (i)the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach; or (ii) the other party is declared insolvent, admits its inability to pay its debts when due, or files for, or otherwise undergoes, bankruptcy. Upon the expiration or termination of this Agreement for any reason any amounts owed to Vooma under this Agreement will become immediately due and payable. Vooma agrees that upon request, Vooma will remove all Subscriber Data from the Vooma Platform and following termination or expiration of this Agreement, all Subscriber access to the Vooma Service will cease. Sections1, and 5-12 will survive the termination of this Agreement.
8. Disclaimer.
8.1 Disclaimer. To the maximum extent permitted by applicable law: (a) the Vooma Service, Vooma Platform and documentation are provided “as is” and“as available” and (b) Vooma and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
8.2 Connected Accounts. Subscriber acknowledges that Vooma has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Accounts or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Account Data. Vooma will have no liability with respect to any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any downtime, unavailability, inaccuracies or failures of any Connected Accounts.
8.3 Disclaimer of Accuracy. Subscriber acknowledges that the Vooma Service utilizes large language models and computer vision tools to identify and derive characters and text from Connected Account Data. The accuracy of any results, records, notifications or other outputs derived from Connected Account Data (collectively, “Outputs”) is dependent upon the accuracy, timeliness and completeness of the Connected Account Data, as well as the quality and legibility of the Connected Account Data. As such, and without limiting Sections 8.1 or 8.2, Vooma makes no representations and warranties as to the accuracy, timeliness, reliability or completeness of any Outputs .Subscriber should verify all Outputs prior to inputting them into its own system of record.
9. Indemnity. Ifany action is instituted or claim is brought by a third party against Vooma relating to (a)Subscriber’s breach or alleged breach of Section 2, or (b) Subscriber’s use ofthe Vooma Service in violation of any applicable laws, rules or regulations,Subscriber will defend such action at its own expense on behalf of Vooma and shall pay all damages, liabilities, losses, costs andexpenses (including reasonable attorneys’ fees) attributable to such claimwhich are incurred by Vooma or paid insettlement of such claim.
10. Limitation of Liability. To the extent permitted by law, in no event shall Vooma be liable for special, incidental, consequential or punitive damages or lost profits in any way relating to thisAgreement. In no event shall Vooma’ aggregate, cumulative liability in any way relating to this Agreement exceed the amount of fees actually received by Vooma from Subscriber pursuant to the applicable Order Form orStatement of Work during the twelve (12) months preceding the claim. the parties would not have entered into this agreement but for such limitations.
11. Publicity.
Subscriber acknowledges and agrees that Vooma may identify Subscriber as a customer of the Vooma Service on Vooma’s website and marketing materials. Subscriber agrees to, upon Vooma’s request, to participate in the creation of a joint press release and/or white paper related to Subscriber’s use of, and experience with, the Vooma Service. Prior to any publication of any such press release or white paper, Vooma will submit such content to Subscriber in order to enable Subscriber to verify the accuracy thereof and ensure that no Subscriber Confidential Information is contained therein; provided, that, in the event Subscriber does not provide any objection thereto within fourteen days of Vooma’s submission, the content of the press release and/or white paper will be deemed accepted.
12. General Provisions.
Subscriber party may not assign any rights or obligation arising under this Agreement, without the prior written consent of Vooma. Vooma may assign this Agreement without consent of Subscriber in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subscriber agrees that Vooma may subcontract certain aspects of the Vooma Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Vooma of any of its obligations hereunder. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Any notice under this Agreement must be given in writing to the other party at the address set forth above. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service. This Agreement and the exhibits attached hereto (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
