The following Terms and Conditions govern all ProServ provided by Abacus Data Systems, Inc. and its Affiliates (“CARET”) identified in any Service Order or Statement of Work executed by Client related to CARET Cloud Products and CARET Software Products.
1. Deliverables– The project deliverables for ProServ will be identified on an ‘As-Need’ basis, subject to an estimated number of hours required to complete the project deliverables; Client agrees that estimate will serve as a mandatory minimum number of hours that will be billed as agreed upon and recorded on a Statement of Work (“SOW”). Client approves prior to work commencing that the minimum estimated hours will be exhausted in their entirety by CARET’s performance of the project deliverables and associated tasks. Where CARET identifies that additional hours beyond the estimate are required to complete the project, Client must purchase those additional hours and apply those hours to the project. To the extent a SOW is used, such SOW shall be incorporated by reference into these Terms and Conditions and governed by the same terms as set forth below. Upon completion of the work set forth in any SOW, CARET will deliver to Client a document entitled “End of Project.” This document will be delivered to Client’s Principal Point of Contact as identified on the account via Docusign. Client’s signature on the End of Project document or Client’s failure to respond within 10 days of receipt of the End of Project document shall be deemed acceptance of all deliverables set forth in the particular SOW and will signify that CARET has completed the work set forth in the SOW, exhausted all estimated hours, and that no further work will be performed by CARET without Client executing a new SOW. CARET’s Professional Service Department’s hours are Monday through Friday, 6:00 a.m. to 5:00 p.m. (PST) (excepting certain holidays). CARET will make its best efforts to respond to all calls or e-mails to ProServ by the next business day. Where Client requests CARET to perform any installation (including but not limited to patches or updates) related to any third-party software application as part of the Deliverables in any SOW, Client authorizes CARET to click to accept the third-party software vendor’s applicable terms and conditions on behalf of Client. Any Professional Services deliverables that are scoped or performed by CARET shall not alter or expand any license Client may have to use CARET products or services.
2. Confidential Information– To the extent that the completion of the ProServ set forth in an executed SOW requires CARET to access Client’s data, CARET acknowledges that Client’s data shall be treated as confidential information. Client hereby authorizes CARET to access Client’s data only as reasonably necessary to complete the ProServ set forth in the particular SOW. To the extent that Client delivers a copy of Client’s data to CARET, CARET will only maintain that copy for purposes of completing a particular project, after which point CARET will destroy all copies of Client’s data that it had in its possession. CARET further warrants that it will maintain the confidential nature of Client’s data and will not disclose the data or its contents to third parties without the Client’s express written consent.
3. Migration, Importation or Manipulation– Where a SOW or any ProServ ordered by way of a Service Order Form or Service Order Addendum calls for manipulation or transfer of data from one software database into another or otherwise splitting data from a database, Client acknowledges and assumes the inherent risks, including the possibility of technological limitations, errors and omissions, or other factors which may result in data transfers being over-inclusive, under-inclusive, or incomplete. To the extent Client provides CARET with data for the purposes of migrating that data to Client’s APC Environment, AbacusLaw, Amicus Attorney, Office Tools Workspace, Zola Suite, or other applications, request CARET to perform a database split, otherwise manipulate data, or copy a database, Client herby confirms that it has the legal right to provide that data and expressly authorizes CARET to perform such tasks. Client further acknowledges that if a dispute arises over whether Client has the legal right to possess or control the data prior to CARET performing the migration, split, other manipulation, or copying, CARET will not perform such task(s) absent written authorization from the party originally disputing Client’s right to the data or a court order. Client acknowledges that to facilitate the process of handling Client’s data for any purposes identified in a SOW, Client’s data may be stored in Microsoft Azure (which Client may be charged for).
4. Modification/Customization– To the extent CARET performs for Client any modifications, special features and/or customization of APC, AbacusLaw, Amicus Attorney, Office Tools Workspace, HotDocs, and/or Zola Suite, or any other CARET product (including but not limited to custom form design, custom screens, custom PAL modules, custom rules, custom dashboards, extra database features, custom database structures, custom review pans, custom report queries, custom user indexes, and custom templates), CARET shall retain all intellectual property rights to such modifications, special features and/or customization. Client will only receive a non-exclusive, limited and non-transferable license to use the modifications, special features and customizations during the term of Client’s current Subscription, and contingent upon Client timely paying all fees due for such Subscription. CARET shall provide Client with a 30-Day Warranty on any modification, special feature or customization following the delivery of the modification, special feature or customization to Client. After the 30-Day Warranty has expired, ProServ can be retained on an hourly basis to assist with this assessment or analysis. Any such services shall be governed by a separate SOW or an executed Managed IT Maintenance Plan.
5. Training– To the extent Client uses Professional Service hours for training, unless expressly stated in a SOW or in a Service Order Form, all training will be provided remotely (i.e., not an onsite visit to Client’s location). Client acknowledges that if Client fails to attend a scheduled training session without providing CARET with notice at least 24 hours prior to the scheduled training session, CARET will charge Client the equivalent of one hour of ProServ time. If such an event occurs and Client does not have any Professional Service hours in its account, Client’s credit card or ACH on file with CARET will be charged at the current billable rate. Client acknowledges that in certain instances, in order to facilitate training on Client’s actual data, Client’s data may be stored in Microsoft Azure (which Client may be charged for).
6. Payment for Services– Unless stated otherwise in the SOW, CARET will charge Client for the ProServ contemplated in an executed SOW at a rate set forth in the Order Form or SOW, rounded up to the nearest hour. Client shall have an option to purchase Professional Service hours by the block at a discounted price based on the rate set forth in a Service Order or SOW executed by Client. The amount of Pre-Paid blocks of ProServ hours purchased by Client shall not be deemed as estimate of the hours necessary to complete any ProServ task or project. Pre-Paid blocks of ProServ shall only be applied for the same type of ProServ work as specified in the Service Order Form, Service Order Addendum, or other document where those hours were purchased (including but not limited to hours purchased for training, customization, or data migration, those hours will be limited to the purpose specified at purchase). CARET will not start work on those ProServ until it has received written approval from Client for the amount of estimated allocated hours to complete the ProServ, and either payment for the total amount of hours approved or approval to execute against the Pre-Paid block of Professional Service hours which Client may have on the books. CARET may be required to charge sales tax on any and all charges for ProServ. Any such taxes will be in addition to the amounts charged for such services. To the extent that any foreign government imposes a tax, tariff or similar charge on CARET arising out of Client’s purchase of Professional Services hours, Client agrees Client will be solely responsible for paying such fees. CARET will not continue to work on a Professional Service project until the last progress bill payment has been processed and posted to the account. Client understands that the estimate to complete the services set forth in the SOW is the mandatory minimum number of hours that will be required and billed for CARET to complete the project. To the extent that additional hours are required to complete the work, CARET will provide a change order request to be approved by Client and Client agrees to pay the additional hours estimated to complete the services set in the change order. Where Client has available hours in Client’s ProServ Account, the additional hours needed to complete the services will be debited from Client’s ProServ Account. Where Client does not have sufficient hours available in Client’s ProServ Account to cover all of the hours needed to complete the services CARET will invoice Client for the additional hours that have not been paid and Client agrees to make payment upon receipt of the invoice. Client hereby acknowledges that all ProServ hours purchased by Client shall expire on the year anniversary of when those particular hours were purchased. Client further acknowledges that to the extent CARET is required to travel to complete the ProServ contemplated in a SOW, Client shall be responsible for paying CARET’s reasonable expenses associated with such travel (including but not limited to travel expenses). Any fees due under these Terms and Conditions that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.
7. Managed Services– Where identified in a Service Order Form or Service Order Addendum, Managed Services shall include the monthly allotment of ProServ hours specified in the applicable Order. Client may apply its balance of Managed Services hours to any ProServ work except HotDocs Integration or Template Development. Managed Services shall be considered a separate ProServ Subscription, governed by the distinct terms set forth herein, but sold co-terminus with Client’s subscription for CARET products. As such, should Client elect not to use Managed Services for any part of its remaining term, Client shall not be relieved of its obligation to continue to pay for Managed Services until the end of the applicable term. Any ProServ hours consumed beyond Client’s monthly allotment for Managed Services shall be billed a la carte at a rate set forth in the Order Form or SOW. Any unused hours shall expire at the end of Client’s billing cycle (i.e., the day where Client makes its MRC payment for any active subscriptions) and shall not roll over to any subsequent month. Any ProServ work which results in a partially used Managed Services hour shall be rounded up to the nearest hour. In order to apply Managed Services hours to any project requested by Client, Client must adhere to the project request process and/or change management process specified by CARET, which CARET may change at its sole discretion.
8. Limitation of Liability– IN NO EVENT SHALL CARET OR ANY OF ITS SUBSIDIARIES BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF CARET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CARET’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE PROSERV PERFORMED BY CARET, OR TO ANY ACT OR OMISSION OF CARET, EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO CARET FOR THE PROSERV AT ISSUE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR CARET TO PROVIDE THE PROSERV AND THAT CARET WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
9. Warranty– Due to numerous factors, including but not limited to the rapid changes in technology, how data is stored or accessed in various applications, CARET cannot guarantee that the deliverables identified in a SOW will be completed precisely as originally contemplated or at all. CARET does warrant that it will use its best efforts to complete the work contemplated in a SOW and that such work be performed in a professional manner.
THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF ANY AGREEMENT BETWEEN CLIENT AND CARET.
10. Indemnification– Client shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) CARET and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively, “Indemnified Parties) from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to (1) any breach of any representation or warranty of Client contained in these Terms and Conditions, and (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms and Conditions or under applicable law.
11. Severability– If any part or parts of these Terms and Conditions, or corresponding Service Order or SOW executed by Client or any future modifications are held invalid by a court of competent jurisdiction, the remaining parts of these Terms and Conditions, or corresponding Service Order or SOW executed by Client or modifications will continue to be valid and enforceable.
12. Waiver– The waiver by either party of a breach or default in any of the provisions of Terms and Conditions, or corresponding Service Order or SOW executed by Client or any future modifications shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that is has or may have hereunder operate as a waiver of any breach or default by the other party.
13. Integration– These Terms and Conditions and the corresponding Statement of Work affirmatively accepted by Client (which are incorporated by reference) set forth the entire agreement relating to the subject matter hereof and supersedes all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof.
14. Governing Law– These Terms and Conditions or SOW executed by Client shall be construed under the laws of the State of California regardless of conflict of law provisions. Client and CARET irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Diego County, California for all disputes arising out of or relating to these Terms and Conditions and/or corresponding Service Order, or SOW executed by Client, or the services contemplated therein. Neither party will bring a legal action arising out of or related to these Terms and Conditions and/or corresponding SOW executed by Client, or the services contemplated therein, more than two years after the cause of action arose. Client and CARET further agree that as a condition precedent to instituting any legal action, the parties must participate in a non-binding mediation in San Diego, California before a neutral from JAMS, with the parties equally splitting the costs of that mediation. If the parties cannot agree on a JAMS neutral, the neutral shall be selected by JAMS at its sole discretion. The mediation process shall be initiated by the aggrieved party submitting the case for mediation to JAMS directly, after providing the other party with notice of its intent to institute mediation.
15. Prevailing Party– In the event of any litigation arising out of or related to these Terms and Conditions and/or corresponding SOW affirmatively accepted by Client, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a matter is filed in any venue other than the state or federal courts in San Diego County, California and the matter is dismissed for improper venue, the party that did not file the action shall be deemed the prevailing party in that action.
16. Data Processing Addendum– The Data Processing Addendum set forth at www.getcaret.com/data-processing-addendum is expressly incorporated into these Terms and Conditions by reference.
17. Subcontracting. CARET may subcontract any work under these Terms and Conditions or corresponding SOW to any third party or Affiliate without Client’s prior written consent. Subject to the limitation of liability provision above, CARET shall remain responsible for the performance acts and omissions of any subcontractor or Affiliate.