THIS AGREEMENT GOVERNS YOUR ORGANIZATION’S ACQUISITION AND USE OF CARKETA, INC. (HEREAFTER “CARKETA”) SOFTWARE SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. BOTH YOU, AND/OR THE LEGAL ENTITY YOU MAY REPRENTS ARE REFERRED TO AS “CUSTOMER”.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services, except with our prior written consent, for purposes of monitoring their availability, performance or functionality.
Your use of the Services constitutes your agreement to these terms. It is effective between you (or the legal entity you represent) and Carketa as of the date you sign an Order or you first use the Services, whichever is earlier.
1. SCOPE AND ORDERING
1.1 Scope. This Agreement sets forth the terms under which Carketa will provide the Service to Customer. Capitalized terms in this Agreement are defined in Appendix 1. The Agreement incorporates the applicable transaction document such as an Order, Statement of Work, online order form, or similar ordering document used by Carketa.
1.2 During the Term, Customer may order Subscriptions to the Service via an Order.
2. SUBSCRIPTIONS TO THE SERVICE
2.1 Subscriptions. Customer may add additional Subscriptions during a Subscription Term at the same price as found in the applicable Order. Added Subscriptions will be co-terminated with existing subscriptions and fees for added Subscriptions pro-rated.
2.2 Usage Limits. Fees for the Subscription for the Service are charged monthly, in advance according to the Inventory quantities and/or price tiers specified in the applicable Order. If Customer exceeds the limitations of a Subscription, Customer’s Payment Method will be automatically charged beginning on the next billing cycle for the applicable price and or inventory tier unless otherwise specified in the applicable Order, or as otherwise negotiated in writing among the Parties. If Customer does not have an automatic Payment Method established with Company, and Customer exceeds the limitations of a Subscription, upon Carketa’ request, Customer will promptly execute an Order, and pay Carketa’s invoice, or authorize Customer’s Payment Method, to allow for sufficient additional Inventory to comply with the Agreement. A Subscription may be reassigned subject to written permission by the Company.
2.3 Beta Services. Carketa may invite Customer to try products or services that are not generally available to customers (“Beta Services”). Customer is under no obligation to use Beta Services. Beta Services will be clearly designated. Beta Services are: a) for evaluation purposes only and not for production use, and b) are not considered a part of the Service under the Agreement. Carketa may discontinue Beta Services at any time. Beta Services are provided “as-is” without warranty, and notwithstanding Section 10, Carketa will have no liability for any claim arising from Customer’s, its Affiliates’, or Users’ use of Beta Services.
2.4 Connected Applications. The Service contains features designed to interoperate with Connected Applications. To use such features, Customer or its Users may be required to obtain access to such Connected Applications from their providers, and grant Carketa access to Customer’s account(s) on such Connected Applications. If Customer uses a Connected Application with the Service, Customer grants Carketa permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Service.
2.5 Disclaimer. Carketa provides interoperability with Connected Applications as a courtesy and not part of the Service. Carketa makes no warranty or guarantee as to the interoperability or availability of any Connected Applications and Customer’s use of any such Connected Applications is wholly at Customer’s own risk. Carketa may terminate interoperability with Connected Applications at any time in Carketa’ sole discretion. Any acquisition by Customer of Connected Applications, and any exchange of Customer Data between Customer and any Connected Application provider, product, or service, is solely between Customer and the applicable Connected Application provider. Carketa does not warrant or support Connected Applications. Carketa is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Connected Application or its provider.
3. CARKETA RESPONSIBILITIES
3.1 Access to the Service. During the Term Carketa will: (a) make the Service available to Customer according to the Agreement and applicable Order(s), (b) maintain appropriate safeguards to protect the security, confidentiality and integrity of Customer Data, (c) remain responsible for the performance of Carketa’ personnel (including Carketa subcontractors) and their compliance with Carketa obligations under this Agreement.
4. CUSTOMER LIMITATIONS/RESPONSIBILITIES
4.1 Limitations. Customer will not: (a) resell, sublicense, rent, loan, lease, time share or otherwise make the Service available to any party not authorized to use the Service under the Agreement or an applicable Order; (b) modify, adapt, alter, translate, copy, or create derivative works based on the Service; (c) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Service (unless such right is granted by applicable law and then only to the minimum extent required by law); (d) access the Services in order to build a competitive product, service or copy any ideas, features, functions or graphics of the Service; (e) merge or use the Service with any software or hardware for which they were not intended (as described in the Documentation); (f) allow Users to share access credentials; (g) use the Service for unlawful purposes or to store unlawful material; (h) use the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (i) disrupt the integrity or performance of the Service; (j) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Carketa or its suppliers contained on or within the Service, (k) bypass any security measure or access control measure of the Service, (k) use the Service other than as described in the Documentation, or (l) perform or disclose any benchmarking or testing of the Service itself or of the security environment or associated infrastructure without Carketa’ prior written consent.
4.2 Remedies for Violating Customer Limitations. Carketa may, without limiting its other rights and remedies, suspend Customer’s and/or applicable Users’ access to the Service at any time if: (i) required by applicable law, (ii) Customer or any User is in violation of the terms of this Agreement, or (iii) Customer’s, or a User’s use disrupts the integrity or operation of the Service or interferes with use of the Service by others. Carketa will use reasonable efforts to notify Customer prior to any suspension, unless prohibited by applicable law or court order, and Carketa will promptly restore Customer’s access to the Service upon resolution of any violation under this section. If Carketa is notified that any Customer Data violates applicable law or third-party rights, Carketa may so notify Customer and in such event Customer will promptly remove such Customer Data from the Service. If Customer does not take required action, Carketa may disable the applicable Customer Data until the potential violation is resolved.
4.3 Customer Responsibilities. Customer will: (a) remain responsible for Users’ compliance with the Agreement, (b) will use commercially reasonable efforts to prevent, and will promptly notify Carketa of, any unauthorized access to the Service arising from a compromise or misuse of Customer’s or its User’s access credentials, (c) use the Services only in accordance with the Documentation, applicable laws, and government regulations, (d) comply with terms of service of any Non-Carketa Applications Customer uses in conjunction with the Service, and (d) remain responsible for any action in violation of the Agreement by Customer’s Affiliates or Users.
5. DATA RESPONSIBILITIES
5.1 Compliance With Applicable Laws. Customer is exclusively responsible for: a) determining what data Customer submits to the Service, b) for obtaining all necessary consent and permissions for submission of Customer Data and related data processing instructions to Carketa, c) for the accuracy, quality and legality of Customer Data, and, d) that Customer complies in all respects with applicable data privacy and protection regulations. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Carketa so that Carketa and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. No rights to the Customer Data are granted to Carketa hereunder other than as expressly set forth in this Agreement.
5.2 Excluded Data. Customer shall not provide Carketa with any Customer Data that is subject to heightened security requirements by law, regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Health Insurance and Portability and Accountability Act (HIPPA), Family Educational Rights and Privacy Act (FERPA), the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Customer Data collectively, “Excluded Data”). Carketa shall have no responsibility or liability for Excluded Data.
6. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
6.1 Reservations of Rights. Access to the Service is sold on a subscription basis. Except for the limited rights expressly granted to Customer hereunder, Carketa reserves all rights, title, and interest in and to the Service, the underlying software, and any and all improvements (including any arising from Customer’s feedback), modifications and updates thereto, including without limitation all related intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Nothing in this Agreement will impair Carketa’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Customer may develop, produce, market, or distribute.
6.2 Ownership and Processing of Customer Data. With the exception of Personal Information, Carketa shall retain all right, title and interest in all Customer Data stored in the Service, including any revisions, updates or other changes made to Customer Data. Carketa grants Customer a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data during the Term.
6.3 Ownership and Use of Information. Carketa may collect, anonymize, and aggregate data derived from the operation of the Service (“Aggregated Data”), and Carketa may use such Aggregated Data for purposes of operating Carketa’ business, monitoring performance of the Service, and/or improving the Service. Carketa’ use of Aggregated Data as described in this section shall not result in any unauthorized disclosure of Personal Information or Customer Confidential Information of Users. Aggregated Data will not be capable of re-identification. Carketa retains all ownership rights, including intellectual property right, to Aggregated Data.
6.4 Ownership of Deliverables. With respect to any deliverables or work product (“Deliverables”) resulting from any of the professional services, Carketa owns all right title and interest in and to the intellectual property rights pertaining to such Deliverables and grants to Customer a non-exclusive, worldwide right and license to use such Deliverable in connection with Customer’s permitted use of the Service.
6.5 Feedback. Customer grants to Carketa a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Service or professional services (“Feedback”). Feedback does not include Customer Data. Notwithstanding any other term herein, Feedback shall not create any confidentiality obligation for Carketa.
7. PAYMENT; TAXES
7.1 Fees/Payment. Customer will pay Carketa according to the Carketa’s pricing and volume tiers based on Customer Inventory measured as of the last day of each month. Customer will pay in the currency listed in the Order. All fees are due in advance. Customer will provide Carketa with valid and updated Payment Method information, or with a valid purchase order or alternative document reasonably acceptable to Carketa and will be charged against Customer’s Payment Method at the start of each month. Fees are non-cancelable and non-refundable (except as provided herein). Customer may not decrease the number of Subscriptions during a Subscription Term. Carketa reserves the right to suspend the Service in the event Customer is more than thirty (30) days past due on any undisputed invoice and fails to cure the payment deficiency within ten (10) days of receiving written notice from Carketa. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If Customer provides a credit card, Customer authorizes Carketa to charge such credit card for all purchases of the Service for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Carketa will invoice Customer in advance and otherwise in accordance with the relevant Order. When a customer receives an invoice from Carketa, unless otherwise stated in the Order, invoices are due net 14 days from the invoice date. Customer shall provide complete and accurate billing and contact information to Carketa and notify Carketa of any changes to such information.
7.2 Taxes. All fees are exclusive of taxes, levies, or duties, (“Taxes”), and unless Customer can provide a valid state sales/use/excise tax exemption certificate (or other reasonable evidence of exemption) to Carketa, Customer will be responsible for payment of all such Taxes excluding taxes based solely on Carketa’ income. Carketa may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. Carketa reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other location information for Customer’s use of the Service. Customer will be responsible for any Taxes, penalties or interest arising from inaccurate or incomplete information provided by Customer. If Customer is required by any governmental authority to deduct any portion of the amount invoiced by Carketa, Customer shall increase payment by an amount necessary for the total payment to Carketa to be equal to the amount originally invoiced.
8. CONFIDENTIAL INFORMATION
8.1 Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, a party’s pricing, product roadmap, product plans, or strategic marketing plans, algorithms, business plans, customer lists, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, processes, products, research, specifications, software, source code, trade secrets or any other non-public information relating to the Service including the Documentation. Recipient may disclose Discloser’s Confidential Information only to Recipient’s Affiliates, employees, officers, directors, advisors or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.
8.2 Exclusions. “Confidential Information” does not include information that: (a) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; (e) Discloser agrees in writing is free of such restrictions; or (f) is generally disclosed by the Discloser to third parties without a duty of confidentiality.
8.3 Duties Regarding Confidential Information. At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser’s Confidential Information confidential and not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or as expressly permitted in this Agreement, and (b) not use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice (if legally permissible) to enable Discloser to seek appropriate protection of the Confidential Information, and discloses only that portion of the Confidential Information that the Recipient is legally compelled or is otherwise legally required to disclose. Any prior non-disclosure agreement executed among the parties is terminated in favor of these confidentiality terms.
8.4 Unauthorized Disclosures. The parties agree that Recipient’s threatened or actual unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.
9. WARRANTIES AND DISCLAIMER
9.1 Customer Warranties. Customer represents and warrants that: (a) it has the power and authority to enter into this Agreement and the performance by Customer of its obligations and duties hereunder will not violate any agreement to which such party is bound, b) it has the right to provide Carketa with access to all Customer Data, and (c) it shall obtain from its Users all consents required under law regarding the use of the Customer Data and Feedback as described in this Agreement.
9.2 Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT OTHER WARRANTY OF ANY KIND, AND CARKETA MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE AND PROFESSIONAL SERVICES. CARKETA SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, CARKETA DOES NOT WARRANT THE SERVICE WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED. THE SERVICE AND MATERIALS ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
10.1 Indemnification By Customer. If a third party initiates or threatens legal action against Carketa for processing Customer Data uploaded into the Service by Customer or Users, or for a claim relating to Customer’s, or a User’s breach of its obligations under Section 5, where such claim arises solely from Carketa operating the Service, then Customer will: (a) promptly assume the defense of the claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Carketa (without right of appeal) or in a settlement approved by Customer that are attributable to Carketa processing of such Customer Data to provide the Service; provided that Carketa (i) notifies Customer in writing of the claim promptly after receiving it, (ii) allows Customer to control the defense of the claim with counsel of its choice, and to settle such claim at Customer’s sole discretion (unless the settlement requires payment by Carketa or requires Carketa to admit liability, in which case Carketa will have the right to approve such payment or admission, and (iii) reasonably cooperates with Customer in defending the claim at Customer’s expense.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES.
11.1 DISCLAIMER OF INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES OR ITS LICENSORS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT (INCLUDING ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOLUTION), WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S (OR ITS AFFILIATES’) AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE WILL EXCEED THE AMOUNTS PAID OR OWED TO CARKETA BY CUSTOMER IN THE AGGREGATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE CAUSED BY NEGLIGENCE, OR FOR FRAUD. NOTHING IN THIS SECTION WILL LIMIT THE FEES OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE OR PROFESSIONAL SERVICES, OR FOR VIOLATING CUSTOMER’S OBLIGATIONS IN SECTION 4 AND 5. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT CARKETA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
12. TERM AND TERMINATION
12.1 Subscription Term. The Subscription Term begins on the Subscription Start Date and remains in effect for the Subscription Term as specified on the applicable Order. At the end of the Subscription Term, the Subscription will automatically renew for additional Subscription Terms equal to the expiring Subscription Term, unless either party notifies the other of its intent not to renew such Subscription at least twenty (20) days before the expiration of the then-current Subscription Term. Non-renewal notice must be provided by email to [email protected].
12.2 Effective Date and Term. This Agreement commences on the Effective Date and shall remain in effect until terminated by either Party in accordance with the terms of the Agreement (the “Term”).
12.3 Termination. For month to month subscriptions the following termination provisions will apply: Customer and Carketa may terminate this agreement for any reason or no reason by notifying the other as follows: a) for Carketa at [email protected], b) for Customer at the email address specified in the Customer’s account profile. For Subscription Terms longer than a month, the following termination provisions will apply: if either party materially breaches the terms of this Agreement and the breach is not cured (or curable) within thirty (30) days after written notice of the breach, then the other party may terminate this Agreement and/or the applicable Service Order(s) upon written notice to the breaching party. Either party also may terminate this Agreement upon written notice if the other party: (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, (iv) has wound up or liquidated, voluntarily or otherwise, or (v) by ten (10) days’ prior written notice if no Service Order is in effect between the Parties.
12.4 Effect of Termination. Upon termination of this Agreement: (a) Carketa’ obligation to provide the Service will terminate, and (b) all of Customer’s, if Affiliate’s, and its Users’ rights to use the Service will terminate.
12.5 Suspension In Lieu of Termination. If any amount owing by Customer is thirty (30) or more days overdue, Carketa may, without limiting its other rights and remedies, and after providing Customer at least 10 days’ prior notice by email, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Carketa’ services to Customer until such amounts are paid in full.
13. SURVIVAL. The provisions of Sections: 8 (“Confidential Information”),10 (“Indemnification”),11(“Limitation of Liability and Disclaimer of Damages”), and 14 (“Miscellaneous”), and any other terms and conditions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement shall survive any expiration or termination of this Agreement.
14.1 Assignment. Carketa may freely assign this Agreement without the consent of the Customer. Customer may not assign the Agreement without the consent of Carketa.
14.2 Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
14.3 Future Features and Functions. Customer agrees that Carketa may, from time to time, at its sole discretion, modify and update the Service. Customer understands and agrees that any features or functions related to Carketa products referenced on any Carketa website, or in any presentations, verbal or electronic communications, press releases or public statements, which are not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Carketa’ sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time a Service Order is executed, and not in expectation of any future feature or function.
14.4 Notices. Notices may be sent by first-class, registered mail (return receipt requested) or private courier to the address of the receiving party identified on the first page of this Agreement. Notice will be deemed given five (5) days after mailing U.S. first class, registered mail, or upon confirmed delivery by private courier, whichever is sooner. Customer will address notices to Carketa’ Legal Department, with a copy to [email protected]. Either party may from time to time change its address for notices under this section upon written notice to the other party.
14.5 Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.
14.6 Dispute Resolution. This Agreement will be governed by the laws of the State of Utah, U.S.A., without giving effect to any conflicts of laws provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of Salt Lake County, Utah, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration or termination of all Subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14.7 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
14.8 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a customer or supplier, as applicable.
14.9 Force Majeure. Force majeure events shall excuse the affected party (the “Non-Performing Party“) from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include acts which are beyond the reasonable control of a party, including without limitation, Acts of God, natural disasters, pandemic, epidemic, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of: (a) its best reasonable assessment of the nature and duration of the Force Majeure Event, and (b) the steps it is taking to mitigate its effects. If the Force Majeure Event prevents performance for more than sixty (60) days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice. Carketa’ suspension of the Services in order to comply with laws is a Force Majeure Event.
14.10 U.S. Government Restricted Rights. If the Service is used by the U.S. Government, parties agree the Service is “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
14.11 Publicity. During the term of this Agreement, Customer agrees to support Carketa’ marketing efforts in the following areas: (i) Customer’s name and logo may be used on Carketa’ website and in Carketa’ marketing materials (subject to Carketa’ compliance with any written trademark use guidelines provided by Customer to Carketa in advance), (ii) press release announcing Customer’s selection of Carketa and/or the Service, and (iii) announcement of Customer’s use of Carketa (in a method of Customer’s choosing; blog, press release, email, other channels). If Customer plans to submit or publish any research relative to Customer’s outcome of using Carketa Products and/or Service, Customer agrees to inform Carketa prior to such submission or publication.
14.12 Entire Agreement; Execution. This Agreement, together with the Appendices and applicable Service Order(s) constitute the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised. However, if Customer agreed to these terms by reference in another binding instrument (e.g., on an Service Order which refers to these terms by URL), Carketa may change these terms by posting an updated version at the applicable URL and notifying Customer of the change. By continuing to access or use the Service after such notice Customer agrees to be bound by the updated terms. Customer click-through terms, preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Carketa and/or purport to take precedence over this Agreement. The order of precedence among all documents executed among the parties shall be: (1) the applicable Order, (2) this Agreement, (3) fully executed SOWs, (4) the Documentation. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signatures.
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party through the possession of more than fifty percent (50%) of the voting stock of the controlled entity.
“Authorized User” or “User” means: (a) in the case of an individual accepting this Agreement on such individual’s own behalf, such individual; or (b) an employee or authorized third-party of Customer, who has been authorized by Customer to use the Service in accordance with the terms and conditions of this Agreement and has been allocated user credentials.
“Connected Application” means Customer’s or a third party’s web-based or other software application interoperates with the Service.
“Customer Data” means any electronic data or materials provided or submitted by or for Customer to or through the Service.
“Documentation” means Carketa’ published user manual that describes the functionality of the Service, as updated by Carketa from time to time.
“Inventory” means the average daily number of vehicles tracked within the Service for the prior calendar month.
“Service Order” or “Order” means the purchasing document (however so named), signed or authorized by a duly authorized representative of each party, that details the Subscription, pricing, payment terms, applicable licensing metrics, other applicable commercial terms and condition, and includes its attachments, schedules, exhibits, addenda, and any terms and conditions and other products and services purchased by Customer from Carketa pursuant to this Agreement, including the applicable pricing and Service Entitlements.
“Party” means either Customer or Carketa and together the “Parties”.
“Payment Method” means the credit card, ACH authorization, other banking information, or payment method provided by the customer at the time of purchase for recurring payments.
“Personal Information” means any information that identifies or could reasonably be used to identify, locate, or contact a natural person.
“Services” or “Services” means Subscriptions to access or use the Carketa software-as-service platform located at www.Carketa.com.
“Service Entitlement” means the ability to access or use a Company product or the Service as set forth in an Order.
“Subscription” means the right to access a Service Entitlement during the Subscription Term as specified on an Order (including limitations as to quantity, location, volume, pricing, or other metrics).
“Subscription Term(s)” means the subscription period(s) during which Customer is authorized to use the Services, as specified in an applicable Service Order.