Terms and Conditions

CARKETA MASTER SUBSCRIPTION AGREEMENT

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 REPRESENT 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 executed by Carketa.

1.2 Orders. 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. Additional Subscriptions will be co-terminated with existing subscriptions and fees for additional Subscriptions pro-rated.

2.2 Usage Limits. Fees for the Subscription for the Service are charged on a recurring basis as called for in the applicable Order, in advance according to the Inventory quantities and/or price tiers defined in the applicable Order.

To maintain account security and service integrity, access to the Service with an individual User’s credentials is limited to two (2) devices at any given time. A “device” means any desktop, laptop, tablet, or mobile device used to access the Service. Credential sharing between Users (including co-workers, contractors, or third parties) is strictly prohibited. Each User must have a unique login account. Any attempt to circumvent the access control measures (e.g., rotating credentials, use of shared accounts) may result in suspension of access, additional fees, or termination of service at Carketa’s discretion.

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 defined in the applicable Order, or as otherwise arranged in writing among the Parties. If Customer does not have an automatic Payment Method available with Carketa, and Customer exceeds the limitations of a Subscription, upon Carketa’s 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 rearranged subject to written permission by Carketa.

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 available as 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. It 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. Also, Carketa may terminate interoperability with Connected Applications at any time in Carketa’s 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.

3.2 Maintenance Windows. Carketa reserves the right to perform scheduled and unscheduled maintenance to the Service. Carketa will use commercially reasonable efforts to perform scheduled maintenance during non-business hours. Access to the Service may be limited or unavailable during maintenance windows, and such downtime shall not constitute a breach of 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 permitted 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 designed (as set out 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 set out 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) 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) obtaining all necessary consent and permissions for submission of Customer Data and corresponding data processing instructions to Carketa, (c) the accuracy, quality and legality of Customer Data, and (d) ensuring 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 GLBA, HIPAA, FERPA, COPPA, PCI-DSS, and their international equivalents (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 similar intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

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”) for purposes of operating Carketa’ business, monitoring performance, and/or improving the Service. Carketa’ use of Aggregated Data shall not result in any unauthorized disclosure of Personal Information or Customer Confidential Information. Carketa retains all ownership rights to Aggregated Data.

6.4 Ownership of Deliverables. With respect to any deliverables or work product (“Deliverables”) resulting from 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, or recommendations provided by Customer or its Users (“Feedback”). Feedback shall be considered non-confidential and Carketa shall be free to use such Feedback without any restriction or compensation to Customer.

7. PAYMENT; TAXES

7.1 Fees/Payment. Customer will pay Carketa according to the inventory quantities and/or price tiers specified in the applicable Order. All fees are due in advance. Customer will provide Carketa with valid and updated Payment Method information and will be charged at the start of each month. Fees are non-cancelable and non-refundable. Carketa reserves the right to suspend the Service in the event Customer is more than thirty (30) days past due and fails to cure within ten (10) days of notice. Late payments accrue charges at 1.5% per month. Unless otherwise stated in the Order, invoices are due net 14 days from the invoice date.

7.2 Taxes. All fees are exclusive of taxes, levies, or duties (“Taxes”). Customer is responsible for payment of all such Taxes excluding taxes based solely on Carketa’ income. If Customer is required by any governmental authority to deduct any portion of the amount invoiced, Customer shall increase payment so that the total payment to Carketa equals the original invoiced amount.

7.3 Usage Audit. Carketa reserves the right to audit Customer’s use of the Service (including Inventory counts and User access) to ensure compliance with the terms of the Agreement and applicable Order. If an audit reveals that Customer has underpaid fees, Carketa shall invoice Customer for such underpaid fees at Carketa’s then-current rates, and Customer shall pay such invoice within ten (10) days.

8. CONFIDENTIAL INFORMATION

8.1 Confidentiality. “Confidential Information” means information provided by one party (“Discloser”) to the other party (“Recipient”) which is identified as confidential or would be reasonably understood to be confidential. This Agreement, pricing, and product roadmaps are always considered Confidential Information.

8.2 Exclusions. Confidential Information does not include information that is independently developed, lawfully received from another source, or becomes part of the public domain without breach of this Agreement.

8.3 Duties. Recipient shall keep Discloser’s Confidential Information confidential and not use it for purposes other than the performance of this Agreement. Disclosure required by law is permitted provided Recipient gives Discloser reasonable advance notice (if legally permissible).

9. WARRANTIES AND DISCLAIMER

9.1 Customer Warranties. Customer represents and warrants that it has the power to enter this Agreement, has the right to provide Carketa with access to Customer Data, and has obtained all required consents from Users.

9.2 Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CARKETA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CARKETA DOES NOT WARRANT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.

10. INDEMNIFICATION

10.1 Indemnification By Customer. If a third party initiates legal action against Carketa relating to Customer Data or Customer’s breach of Section 5, Customer will defend the claim and pay costs/damages, provided that Carketa: (i) notifies Customer in writing promptly, (ii) allows Customer to control the defense, and (iii) reasonably cooperates at Customer’s expense.

11. LIMITATION OF LIABILITY

11.1 Disclaimer of Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR LOSS OF USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Limitation of Liability. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNTS PAID OR OWED TO CARKETA BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT.

12. TERM AND TERMINATION

12.1 Subscription Term. Subscriptions automatically renew for additional terms equal to the expiring term unless either party provides notice of intent not to renew at least thirty (30) days before the expiration. Non-renewal notice must be provided by email to support@carketa.com.

12.2 Termination for Month-to-Month. Either party may terminate for any reason by notifying the other via the specified support or profile email addresses.

12.3 Termination for Cause. For terms longer than a month, either party may terminate if a material breach is not cured within thirty (30) days after written notice. Either party may terminate if the other party becomes subject to insolvency proceedings.

12.4 Effect of Termination and Data Deletion. Following the termination or expiration of this Agreement, Carketa shall have no obligation to maintain or provide any Customer Data and may, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

13. SURVIVAL

Sections 8, 10, 11, 12.4, and 14, and any other terms which by their nature should survive, shall survive expiration or termination.

14. MISCELLANEOUS

14.1 Assignment. Carketa may freely assign this Agreement. Customer may not assign without Carketa’s consent.

14.2 Compliance and Export Control. Each party will comply with all applicable export-control, privacy, and anti-corruption laws. Customer represents and warrants that it is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties.

14.3 Future Features. Customer agrees it is purchasing based on features currently available at the time a Service Order is executed, and not in expectation of future functions.

14.4 Notices. Notices must be in writing and sent to the addresses identified in the Agreement.

14.5 Dispute Resolution. This Agreement is governed by the laws of the State of Utah. Exclusive jurisdiction shall be the courts of Salt Lake County, Utah. Each party waives the right to trial by jury.

14.6 Relationship. No agency, partnership, or joint venture is created by this Agreement.

14.7 Force Majeure. Force majeure events (Acts of God, war, pandemic, etc.) excuse the affected party from performance while the event continues.

14.8 U.S. Government Rights. The Service is “commercial computer software” subject to standard commercial terms.

14.9 Publicity. Customer agrees Carketa may use Customer’s name and logo on its website and marketing materials, subject to guidelines provided by Customer.

14.10 Entire Agreement. This Agreement and applicable Orders constitute the entire agreement. It may be executed in counterparts and via electronic signature.

14.11 Consent to Communications. By using the services, Customer agrees Carketa may contact them via email, text (SMS), or phone for service, billing, and promotional purposes.

14.12 Opt-Out. Customer may opt out of promotional communications, but service-related communications may still be required to utilize the Service.

14.13 Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Customer shall not, directly or indirectly, solicit for employment or hire any employee or contractor of Carketa who was involved in the performance of this Agreement.

APPENDIX 1 (DEFINITIONS)

• Affiliate: Any entity that controls, is controlled by, or is under common control through more than 50% voting stock.
• Authorized User: An individual, employee, or contractor authorized by Customer to use the Service with unique credentials.
• Connected Application: A third-party web-based application that interoperates with the Service.
• Customer Data: Electronic data or materials submitted by or for Customer through the Service.
• Documentation: Carketa’s published user manual describing Service functionality.
• Inventory: The average daily number of vehicles tracked within the Service for the prior calendar month.
• Party: Either Customer or Carketa.
• Payment Method: The credit card, ACH, or banking information provided by the customer for recurring payments.
• Personal Information: Information that identifies or could locate/contact a natural person.
• Service Order / Order: The purchasing document detailing the Subscription, pricing, and commercial terms.
• Services: Subscriptions to access the Carketa software-as-service platform.
• Subscription: The right to access a Service Entitlement during the Subscription Term.
• Subscription Term: The period during which Customer is authorized to use the Services.