Where CARET software products are purchased by Client via a fully executed Order Form or through a website managed by CARET or its Affiliates which incorporates these CARET Software Terms (“Terms”), the following terms and conditions shall govern Client’s CARET Software Subscription. The products and services described in these terms will be provided by CARET and its Affiliates as set forth below.
1. CARET Software Subscription– All CARET Software items purchased by Client in a fully executed Service Order Form or Service Order Addendum (collectively an “Order Form”) shall be part of Client’s CARET Software Subscription and subject to these Terms. Client’s license to use the products and receive Support are contingent on Client making timely Payments as set forth below. Only where Client and CARET have negotiated and executed a separate set of terms (e.g. a Master Services Agreement) attached to a fully executed Order Form, will these Terms not apply. To the extent CARET has offered a Modification in a signed Order Form governed by a prior set of terms, that Modification will prevail over the logically equivalent section in the terms below.
2. Grant of License– CARET grants Client a non-exclusive, limited, and non-transferable license to use the products and services that comprise Client’s CARET Subscription subject to Client making its Payments. Unless otherwise specified on the applicable Order Form, this license is limited to one runtime and/or repository instance. Additional payment or subscription is required for each additional runtime and/or repository instance. Separate license fees and validation codes are required for each business entity to use any of the products that comprise Client’s CARET Software Subscription. Client agrees to pay a license fee for each User (who must be employed by Client unless a waiver is granted by CARET expressly in writing) who uses any of the products that comprise Client’s CARET Subscription, and only those Users who have proper user credentials may use those products or any of the other products that comprise Client’s CARET Subscription. Client’s use of CARET Software is subject to the Acceptable & Fair Use Policy set forth below. CARET is under no obligation to grant Client additional licenses. By accepting these Terms, Client acknowledges that any license Client may have had to prior versions of products or services licensed by CARET or one of its predecessors in interest (including legacy or perpetual licenses) terminates upon Client’s signature on the applicable Order. Client agrees that it will not rent, lend, or transfer any products or services the comprise Client’s CARET Software Subscription or any of its rights under these Terms without the express written permission of CARET.
3. Hosting of Licenses– Unless Client purchases license or SKU that specifically permits Client to remotely host or make CARET Software server enabled (“Hosted License”), Client may not host CARET Software within any type of remote access solution, including but not limited to Remote Desktop Services session, a Terminal Services session, in a cloud (private or multitenant) environment, via Citrix, TeamViewer, or a similar solution, or from multiple physical locations connected to a single software deployment (collectively “Hosted”). Where CARET determines that during the Term of Client’s CARET Software Subscription Client is using or has used CARET Software products in a Hosted fashion, Client acknowledges and agrees that a fee increase will apply at then-current list prices for each User (“Hosting License Fee Increase”) on Client’s CARET Software Subscription, effective immediately, backdated to the commencement of the Term of Client’s CARET Software Subscription, and the total amount owed will be amortized over the remainder of the Term of Client’s CARET Software Subscription. If Client has purchased CARET Cloud products in addition to CARET Software products, a Hosted License is not required, but Client’s license to use CARET Software products is limited to host and use within Client’s CARET Cloud products.
4. Payments – Client shall pay all fees and expenses (“Fees”) in accordance with the Order Form for the entire Term of Client’s CARET Software Subscription (the “Payment”). Unless otherwise stated in the Order Form, payment is required in advance of services being provided. Client authorizes CARET to automatically bill in advance of each period’s services via a recurring Automated Clearing House transaction (“ACH”) or credit card transaction. Electronic debit of a credit card or bank account is required for all Payments, unless a Purchase Order is required. Client further authorizes CARET to use a third party to process payments and consents to the disclosure of Client payment information to a third party. All payments made by Client to CARET are non-refundable. In the event that Client believes CARET has billed Client incorrectly, the Client must contact CARET at billing@getCARET.com no later than 60 days after the invoice date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Client shall pay CARET the fees set forth in the applicable Order together with any taxes payable by Client that are required to be collected by CARET pursuant to any applicable law, including but not limited to State and Local Taxes. To the extent that any foreign government imposes a tax, tariff or similar charge on CARET arising out of Client’s CARET Software Subscription, Client agrees Client will be solely responsible for paying such fees. Unless specifically stated otherwise, all fees listed in an Order Form are set forth in US Dollars. Client will keep their contact information, billing information and bank account or credit card information up to date. Change may be made by contacting billing@getCARET.com. As it relates to payments made by Client, Client will be charged a fee of $35 for any returned payment, including but not limited to any check or Automated Clearing House transaction that is deemed invalid due to insufficient funds. Any fees due under these Terms that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month. In event of a default or non-payment or chargebacks, Client shall be deemed in breach.
5. Software Performance – CARET shall make all reasonable efforts to make CARET Software products purchased by Client function in substantial accordance with the published documentation and applicable user support guides (“Knowledge Base”) found within the CARET Customer Portal, subject to Client meeting the minimum system requirements and timely making payments. Due to changes in technology and the marketplace, CARET may make modifications to the products or services that comprise Client’s CARET Software Subscription, or particular components of such product or service (including but not limited to discontinuing a component) from time to time, and will use commercially reasonable efforts to notify Client of any material modifications.
6. Knowledge Base – Each CARET Software product, subject to the description of service(s) purchased as part of Client’s CARET Software Subscription, is provided in accordance with the applicable Knowledge Base linked below (all of which are herein incorporated by reference):
Where Client hosts CARET Software products within Cloud Products, additional terms, conditions, and requirements shall apply, as described in the applicable Cloud Terms (found at https://www.getCARET.com/cloudterms/).
7. Use of Microsoft – Certain CARET Software products may include the use of Microsoft products or services. Where the applicable Knowledge Base describes Client’s use of any Microsoft products or services as part of Client’s CARET Software Subscription, Client agrees that the applicable standard Microsoft terms and conditions for those products or services shall apply (found at https://www.microsoft.com/en-us/).
8. Abacus Payment Exchange (APX) – Client may have the option to use Abacus Payment Exchange (“APX”) which is a payment processing service made accessible in select CARET software products or services that is provided by either Vantage Card Services, Inc. (“Vantage”) via APX 1.0 or Payrix Solutions, LLC (“Payrix”) via APX 2.0, and is otherwise governed by all terms and policies set forth respectively by either Vantage or Payrix (as applicable). In order to use APX, Client must accept the applicable Vantage or Payrix governing terms, and any additional terms related to CARET as set forth in the on-boarding process. CARET DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF APX. APX (1.0 and/or 2.0) may not be available to certain customers or products.
9. Technical Support –Technical support and troubleshooting for reported issues that are directly related to the CARET Software product(s) purchased by Client is included as part of Client’s CARET Software Subscription, as provided in this Paragraph. CARET shall not be obligated to provide technical support or to cure issues regarding third-party applications, customizations, integrations with third-party applications, internet or local network connectivity, Client’s local infrastructure or workstations, or issues caused by Client’s users, agents, or other technology providers. Included with Client’s CARET Software Subscription is access to CARET standard technical support, during Technical Support business hours for each product, located within the FAQ section of each product’s Knowledge Base found at https://support.getCARET.com/hc/en-us. Depending on the nature of the reported technical issue, CARET may initiate further troubleshooting efforts, which may include support via the live chat feature, responding via e-mail to a support ticket created by Client, or in certain cases providing direct phone support, remote screen-sharing, and/or direct access into Client’s database, files, software or environment, as well as CARET taking screen grabs of Client’s Users’ screens, adding and/or deleting records (solely for the purpose of diagnosing and correcting the reported issue(s)). Any support response or combination thereof shall be provided in CARET’ sole discretion. By requesting support, Client shall be deemed to have granted CARET, its Affiliates and agents permission to utilize any and all methods of support listed in this Paragraph.
10. Advanced Support Offerings – CARET may offer, and Client may purchase Advanced Support Offerings to enhance its CARET Software Subscription experience. Where purchased, such offerings shall be described in a separate Order Form.
11. Professional Services – Any request for CARET to perform technical support, services, or any deliverables that are outside the scope of Technical Support shall require a Professional Services engagement, provided on a time and materials basis by CARET and its Affiliates at the prevailing hourly rate. All such Professional Services shall be rendered pursuant to a separate Statement of Work (“SOW”), a separate and distinct agreement from Client’s CARET Software Subscription and governed by the terms and conditions set forth at https://www.getCARET.com/professionalservicesterms.
12. Client Data. Any information, including but not limited to data belonging to Client or any third-party, provided by Client to CARET or entered by Client into a CARET product, service, or website shall be referred to as “Client’s Data”. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the Client Data. Client shall only disclose, submit or provide to CARET Client Data as necessary for CARET to provide Client’s CARET Software Subscription. Client hereby grants CARET a non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) during the Term to access, use, reproduce and create derivative works of Client Data in order to provide and improve Client’s CARET Software Subscription, for general product research and development, data analysis, and data aggregation in de-identified form, and to fulfill CARET’s obligations under these Terms. Aggregated and statistical de-identified data (“Aggregated Data”) derived from the operation of the applicable software shall be owned by CARET and nothing herein shall be construed as prohibiting CARET from using Aggregated Data for business and/or operational purposes provided that CARET does not share with any third party Aggregated Data which reveals the identity of Client, Users or Confidential Information. Client hereby represents and warrants that Client has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Client Data and allow CARET to use, store, disclose and otherwise process such Client Data as contemplated by these Terms, including to and from Users wherever required under applicable law.
13. Confidentiality – Client Data shall be treated as confidential information. Unless legally required, CARET shall not disclose Client’s Data or its contents to third parties without the Client’s express written consent. Likewise, Client shall not disclose any information related to CARET, or its products or services, that is either marked confidential or, given its subject matter, would reasonably be regarded as being of confidential nature, without CARET’ express written consent. The rights and obligations set forth in this Paragraph shall not apply to: (i) information publicly known or in the public domain prior to the time of disclosure; (ii) information publicly known and made generally available after disclosure through no action or inaction of the recipient; (ii) information already in the possession of recipient, without confidentiality restrictions; (iv) information obtained by the recipient from a third party without a breach of confidentiality; and (v) information independently developed by the recipient. CARET shall not be liable for disclosure of Confidential Information if made in response to a valid court order or authorized government agency; provided that, if possible, five (5) days’ notice is given to Client.
14. Intellectual Property – CARET and its Affiliates own all rights, title and interest, including all related Intellectual Property Rights, in and to all CARET products and services, and any suggestions, ideas, enhancement or development requests, feedback, or recommendations provided by Client relating to the products and services. The CARET name and logos, as well the product names and logos associated with all CARET products and services are trademarks of CARET or its Affiliates. Client retains all right, title, and interest in and to Client’s Data.
15. Term – Unless stated otherwise in the Order Form, the term of Client’s CARET Subscription commences on the date Client executes the Order Form and shall continue for the minimum term set forth in the corresponding Order Form executed by Client (“Initial Term”).
ABSENT EITHER PARTY PROVIDING THE OTHER WITH WRITTEN NOTIFICATION (AS REQUIRED IN THE NOTICES PARAGRAPH BELOW) AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR ANY SUBSEQUENT RENEWAL TERM, CLIENT’S CARET SOFTWARE SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR A TWELVE (12) MONTH PERIOD (“RENEWAL TERM”) SUBJECT TO A MAXIMUM PRICE INCREASE OF 15% (“PERCENTAGE PRICE ADJUSTMENT”). HOWEVER, IF AT THE TIME OF AUTO-RENEWAL THE CURRENT LIST PRICE OF THE SOFTWARE IS HIGHER THAN THE PRICE AFTER THE PERCENTAGE PRICE ADJUSTMENT, THE SOFTWARE SUBSCRIPTION MAY RENEW AT THE THEN CURRENT LIST PRICE.
WHERE MONTH-TO-MONTH TERMS ARE AVAILABLE AND APPLY, CLIENT’S CARET SOFTWARE SUBSCRIPTION WILL RENEW ON A MONTHLY BASIS. CARET, WITH THIRTY (30) DAYS NOTICE, MAY INCREASE PRICING ON MONTH-TO-MONTH CONTRACTS. CLIENT MUST PROVIDE THIRTY (30) DAYS NOTICE TO CANCEL WITHOUT PAYING THE EARLY TERMINATION FEE, AS DEFINED IN PARAGRAPH 19 BELOW.
16. Users – Each unique named individual (“User”) must have a license to use CARET Software. Concurrent use of a User license by more than one individual is expressly prohibited. A User license is part of Client’s CARET Software Subscription, and the User license may only be reassigned to another individual in the event that the User has ceased working for Client or within Client’s organization. Where available or otherwise offered for a particular product (depending on the CARET Software product and at CARET’ sole discretion) Client may purchase a Flex User. A Flex User shall have the same definition as User, except that Client may cancel a Flex User License with thirty (30) days’ notice, without the applicable Early Termination Fee.
17. Non-Solicitation – During the term of Client’s CARET Software, and for 12 months thereafter, Client agrees that it will not directly or indirectly recruit, solicit, or otherwise induce or attempt to induce any employee of CARET (or its Affiliates) that had direct contact with Client while that employee was acting in the course and scope of the employee’s duties with CARET to terminate his or her employment with CARET. Client acknowledges that if it breached this Paragraph and the relevant employee left his or her employment with CARET, it would be difficult to determine actual damages. Based on what the Parties presently know, they agree that an amount equal to 100% of the relevant employee’s CARET annual salary is a reasonable estimate of the damages that would accrue if a breach of this provision occurred in the future and the relevant employee terminated his or her employment with CARET as a result. Client agrees that the amount of liquidated damages is fair and reasonable and would not act as a penalty in such an instance.
18. Suspension– CARET may, at its sole discretion, suspend Client’s CARET Software Subscription if Client’s account is 5 days past due. In the event that CARET suspends Client’s CARET Software Subscription, Client’s access to the applicable CARET Software will (depending upon the product) either be prohibited or otherwise rendered inoperable, and Client will not have the ability to import or manipulate data within the program(s). If Client wishes to reinstate its CARET Software Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).
19. Termination by Client – Client may not terminate its CARET Software Subscription for any reason other than a material breach of these Terms which remains uncured for sixty (60) days from CARET’ receipt of Notice of the alleged breach (the “Cure Period”). In order for a Notice of material breach to be deemed sufficient, Client must identify the specific contractual obligation that was breached by CARET, provide particular facts to support the allegation of breach, and must cooperate with and provide access to CARET in order for CARET to observe, replicate, and troubleshoot the reported issue throughout the Cure Period. If after giving the requisite notice of an alleged material breach, Client refuses to allow CARET to evaluate the nature of the alleged breach or otherwise fails to cooperate with CARET’ efforts to cure the alleged breach, CARET shall be relieved of any obligation to cure the alleged breach, and will eliminate Client’s ability to terminate Client’s CARET Software Subscription for cause (with respect to that alleged breach). For termination of Client’s CARET Software Subscription (or any part thereof, including downgrading an account) for any reason other than for cause, Client shall pay the Early Termination Fee, which shall be equal to any remaining unpaid portion of the Payment.
20. Termination by CARET – CARET may terminate Client’s CARET Software Subscription for any reason by providing thirty (30) days’ Notice of termination. In the event of Termination by CARET under this section, CARET shall refund any unused portion of fees pre-paid by Client for Client’s CARET Software Subscription for the remaining Term after Software termination. For Trial subscriptions, unless the Client does not subscribe for a full term, the Client’s subscription will automatically terminate at the end of the trial.
21. Acceptable & Fair Use Policy – By using CARET products and services or by accepting these Terms, Client warrants and accepts responsibility for the following: (i) Client shall not use CARET products for any illegal purpose; (ii) Client shall not use CARET products or services in a manner that infringes on the intellectual property rights of a third party; (iii) Client shall not assign multiple individual named humans to a single license; licenses are sold on a “per seat” basis; (iv) Client shall not use any API, integration, third party software, or otherwise use CARET products and services in a way that circumvents the requirement for each unique individual to have a license, and CARET reserves the right to rate limit use of APIs should usage of such APIs is measured to be disproportionate to the number of users associated with Client’s CARET Software Subscription; (v) Client shall not use any API, integration, third party software, or otherwise use CARET products and service in a way to extract data from any CARET product for commercial purposes, including but not limited to “screen scraping” or other modes of extractions (unless the third party has directed agreed, in a written license agreement with CARET, to be given access to extract data, even Client Data protected by a user login, through any means outside of the web application interface as provided by CARET (v) Client shall not license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit CARET Software for a third party’s benefit unless specifically authorized by CARET pursuant to a mutually executed written agreement; (vi) as it relates to HotDocs Advance, Client shall not use Cloud APIs for batch processing either simultaneously or in rapid succession without prior written consent by CARET; (vii) as it relates to HotDocs Advance, Client shall not use the “Client Interviews” feature or “Public Interviews” feature for Client’s employees, agents, affiliates, service providers, collaborators or an individual or entity who repeatedly accesses HotDocs interviews unless such individual is a licensed User, as such, use of these interviews in collaboration with the same third party for repeated transactions is strictly prohibited (absent a publisher license); (viii) Client has the legal right as a data controller to provide Client’s Data to CARET for CARET to process; (ix) Client shall not disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative work of any CARET products or services; (x) Client shall not allow for individuals outside of Client’s organization to use CARET products or services without a publisher license (this prohibition does not include to the use of public interviews); (xi) Client shall not resell or otherwise charge third parties for the use of any CARET product or services (this prohibition includes but is not limited to external or public interviews); (xii) Client not shall use CARET software products or services in any fraudulent manner; (xiii) Client shall use CARET software in compliance with all applicable laws; (xiv)Client shall promptly provide notice to CARET of any violation of this Acceptable & Fair Use Policy or any other violation by Client of these Terms; (xv) Client is not an employee, associate, contractor, agent, or other related party of a competitor of CARET.
22. Publicity – CARET may disclose Client as a customer of CARET and may use Client’s company’s name and logo on the CARET’s websites and in CARET’s promotional content in accordance with Client’s brand guidelines or related documentation if provided by Client. CARET will be granted a revocable, non-exclusive, non-sub-licensable, non-transferable, royalty-free right and license (the “Trademark License”) to use, display and reproduce such party’s name, logo, trademarks and service marks (the “Trademarks”). CARET acknowledges that Client’s Trademark is and will remain the exclusive property of Client. Client may opt out of this provision by emailing email@example.com.
23. Disclaimer of Warranty – CARET TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S CARET SOFTWARE SUBSCRIPTION OPERATING BUG-FREE, AND SAFE, BUT CLIENT ACKNOWLEDGES THAT ITS USE OF THOSE PRODUCTS AND/OR SERVICES IS AT ITS OWN RISK. CARET IS PROVIDING THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S CARET SOFTWARE SUBSCRIPTION AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CARET DOES NOT GUARANTEE THAT THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S CARET SOFTWARE SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
CARET FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT CARET PRODUCTS WILL FUNCTION WHEN INTEGRATED OR COMBINED WITH THIRD-PARTY SOFTARE PRODUCTS, INCLUDING BUT NOT LIMITED TO MICROSOFT PRODUCTS.
CARET DOES NOT MAKE ANY REPRESENTATION THAT CLIENT’S USE OF ANY CARET SOFTWARE PRODUCT WILL COMPLY WITH ANY LEGAL REQUIREMENTS IN A PARTICULAR JURISDICTION. CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE USE OF THE APPLICABLE CARET SOFTWARE IS IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF ANY JURISDICTION TO WHICH CLIENT MAY BE SUBJECT.
24. Limitation of Liability – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF ANY OF THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S CARET SOFTWARE SUBSCRIPTION BY CLIENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER 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 THE OTHER PARTY 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 CLIENT’S CARET SOFTWARE SUBSCRIPTION, THESE TERMS, OR TO ANY ACT OR OMISSION OF CARET, EXCEED THE EQUIVALENT OF SIX-MONTHLY RECURRING CHARGES (MRC). LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED COPY OR DISTRIBUTION OF THE PRODUCTS AND/SERVICES THAT COMPRISE CLIENT’S CARET SOFTWARE SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CARET FOR CLAIMS ARISING OUT OF CLIENT’S CARET SOFTWARE SUBSCRIPTION OR THESE TERMS SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED ABOVE). THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING CLIENT’S CARET SOFTWARE SUBSCRIPTION AVAILABLE TO CLIENT AND THAT, WERE CARET TO ASSUME ANY FURTHER LIABILITY OTHER THAN SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO CLAIMS RELATED TO THIRD PARTY SOFTWARE AND ITS OWNERS AND PROVIDERS.
25. Indemnification – Client shall fully indemnify, hold harmless and defend CARET and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates (collectively “CARET 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, (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms or under applicable law, and (3) any violations of any applicable privacy laws caused by errors or omissions of Client. CARET shall fully indemnify, hold harmless and defend Client and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates (collectively “Client 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), involving a claim that CARET Software products infringe on the intellectual property rights of a third party, except where Client’s conduct is the cause of the alleged infringement.
26. Assignment – Client shall not directly or indirectly assign, transfer, convey, pledge, encumber, or otherwise dispose of any rights or obligations under these Terms without the prior written consent of CARET, which consent will not be unreasonably withheld. Any assignment made without CARET’s consent is void and ineffective. CARET can assign or transfer any rights or obligations under these Terms without the prior written consent of the Client. In the instance that such assignment occurs, CARET will make reasonable efforts to give notice to Client of such transaction.
27. Anti-Bribery – CARET has an Anti-Bribery and Anti-Corruption policy. CARET shall maintain and comply with the policy. CARET shall provide a copy of the prevailing anti-bribery upon request.
28. Severability – If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
29. Integration – These Terms, the Knowledge Base, and the corresponding Order Form(s) executed by Client (which are incorporated by reference) set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior edition of terms and conditions or End User License Agreements with respect to CARET Software Products.
30. Governing Law – WHERE PERMITTED UNDER THE APPLICABLE LAW, CLIENT AND CARET AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES.
If Client’s CARET Software Subscription was purchased from Abacus Data Systems, Inc., these Terms, any corresponding Order Form executed by Client, and any claim arising out of or in connection thereto (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), 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 venue of the state or federal courts in San Diego County, California. Neither party will bring any legal action 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.
If Client’s CARET Software Subscription was purchased from AbacusNext International, Ltd., these Terms and any corresponding Order Form executed by Client, and any claim arising out of or in connection thereto (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of England and Wales. Each of the parties irrevocably submits for all purposes (including any non-contractual disputes or claims) to the exclusive jurisdiction of the courts in England and Wales.
31. Prevailing Party – In the event of any litigation arising out of or related to Client’s CARET Software Subscription, these Terms, any corresponding Order Form executed by Client and/or Client’s CARET Software Subscription, 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 venue specified the Governing Law section, 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.
32. Updates/Changes to Services and Terms – Due to changes in technology and the marketplace, CARET may make modifications to the products or services that Comprise Client’s CARET Software Subscription or particular components of such product or service (including but not limited to discontinuing a component) from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Any such modification shall not be deemed to violate the Software Warranty, and Client agrees that CARET will not be liable to Client for any such modifications. CARET reserves the right to discontinue offering a Client’s CARET Software Subscription at the conclusion of Client’s then current subscription term. Likewise, CARET reserves the right to routinely update, amend or change these Terms. At least 30 days prior to the effective date, CARET will notify client by e-mail of such changes, and a new Terms document will be posted at www.getCARET.com/softwareterms/. Client’s continued use of the Services after the 30 days will serve as consent to the changed terms.
33. Notices – All notices to Client under these Terms will be deemed given when delivered via e-mail to the address set forth in the Service Order. All notices to CARET under these Terms will be deemed given when delivered via e-mail to notice@getCARET.com.
35. Maintenance of Records; Audit Right– During the term of Client’s CARET Software Subscription (and for one year after the expiration of the Term), Client shall maintain complete, accurate and detailed records regarding the number, location, and identity of all users, servers, and installations of CARET Software. Upon prior written notice, CARET or its authorized representative may conduct an audit of Client’s users, and installations of CARET Software. At CARET’s election, such audit may be conducted on Client’s premises or remotely. Upon completion of the audit, where CARET determines that Client is using or has used its software in an unauthorized fashion (e.g. exceeding the allotted number of Users), then Client acknowledges and agrees that a fee increase will apply at then-current list prices on Client’s CARET Software Subscription, effectively immediately, backdated to the commencement of the Term of Client’s CARET Software Subscription, and the total amount owed will be amortized over the remainder of the Term of Client’s CARET Software Subscription.
36. Export Control – CARET Software products are subject to U.S. and foreign export control laws. Client shall not ship, transfer, export or re-export CARET Software Products into any country, or use them in any fashion prohibited by the United States Export Administrations Act or Regulations or any other applicable laws, restrictions, or regulations.
37. Affiliates – CARET’s Affiliates may include subsidiaries, subcontractors, and subprocessors. CARET may subcontract any work under these Terms and Conditions 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.