The following terms and conditions shall govern Partner’s use of the CARET Partner Migration Portal (“PMP” or “Portal”). Any license to access and use the PMP can be revoked at anytime by CARET at its sole discretion.
1. Use of Partner Migration Portal– Partner will have access to use the CARET PMP to help migration Client Data into Client’s CARET Legal environment. Partner will have 90 days to use the PMP to complete a single project. Use of the PMP for a single project can be extended by contacting CARET. Use of the PMP does not give Partner or Client any additional licenses to CARET software. Use of the PMP is subject to the Acceptable & Fair Use Policy listed below. CARET in its sole discretion may require each user of the PMP to obtain certain certifications and other satisfy contingencies in order to gain and/or maintain access to the PMP.
2. Portal Performance – CARET shall make all reasonable efforts to make the PMP function in accordance with migration needs. Due to changes in technology and the marketplace, CARET may make modifications to the PMP from time to time, and will use reasonable efforts to notify Partner of any material modifications.
3. Partner Responsibility for Client Data – Any information, including but not limited to data belonging to a client or any third-party entered by Partner into the PMP shall be referred to as “Client’s Data”. Partner shall have sole responsibility for the accuracy, quality, integrity, and reliability of the Client Data while using the PMP. Partner hereby represents and warrants that it has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, and migrate the Client Data. Upon completion of migration, Client’s data will be permanently deleted from any PMP storage.
4. Intellectual Property– CARET and its Affiliates own all rights, title and interest, including all related Intellectual Property Rights, in and to the PMP and all CARET products and services, and any suggestions, ideas, enhancement or development requests, feedback, or recommendations provided by Partner 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.
5. Users – Each unique individual that accesses the PMP (“User”) must have a license to use PMP. Each unique User will be granted access to specific projects which User is authorized to complete. Concurrent use of a User license by more than one individual is expressly prohibited. All User licenses will be issued to specific individuals by CARET.
6. Acceptable & Fair Use Policy – By using the PMP, Partner warrants and accepts responsibility for the following: (i) Partner shall not use the PMP for any illegal purpose; (ii) Partner shall not use the PMP in a manner that infringes on the intellectual property rights of a third party; (iii) Partner shall not assign multiple individual named humans to a single license to use the PMP; (iv) Partner shall not use any API, integration, third party software, or otherwise use the PMP in a way that circumvents the requirement for each unique individual to have a license; (v) Partner shall not allow unauthorized users to use a PMP license, or otherwise gain access to the PMP or any data used in the PMP; (vi) Partner shall not license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit the PMP for a third party’s benefit unless specifically authorized by CARET pursuant to a mutually executed written agreement; (vii) Partner warrants that it has the legal right as a data controller to provide a Client’s Data to CARET for CARET to process; (viii) Partner shall not disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative work of the PMP; (ix) Partner not shall use the PMP or services in any fraudulent manner; (x) Partner shall use the PMP in compliance with all applicable laws; (xi) Partner shall promptly provide notice to CARET of any violation of this Acceptable & Fair Use Policy or any other violation by Partner of these Terms; (xii) Partner warrants that it is not an employee, associate, contractor, agent, or other related party of a competitor of CARET; and (xiii) Partner shall promptly provide notice to CARET if it gains access through the use of the PMP of any data beyond the data associated with a particular project, or where Partner otherwise suspects it should not have access to particular data.
7. Disclaimer of Warranty – CARET TRIES TO KEEP THE PMP OPERATING BUG-FREE, AND SAFE, BUT PARTNER ACKNOWLEDGES THAT ITS USE OF THE PMP IS AT ITS OWN RISK. CARET PROVIDES THE PMP 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 PMP WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
CARET FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE PMP 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 PARTNER’S USE OF THE PMP WILL COMPLY WITH ANY LEGAL REQUIREMENTS IN A PARTICULAR JURISDICTION. PARTNER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE USE OF THE PMP IS IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF ANY JURISDICTION TO WHICH PARTNER MAY BE SUBJECT.
8. Limitation of Liability – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF ANY OF THE PRODUCTS AND/OR SERVICES BY PARTNER, 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. CARET’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO PARTNER, UNLESS WITH EVIDENCE OF FRAUD OR MALICIOUS CONDUCT BY CARET, FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE PMP, THESE TERMS, OR TO ANY ACT OR OMISSION OF CARET, WILL BE $0. LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED COPY OR DISTRIBUTION OF THE PRODUCTS AND/SERVICES, PARTNER’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CARET FOR CLAIMS ARISING OUT OF CLIENT’S CARET SOFTWARE SUBSCRIPTION OR THESE TERMS SHALL BE $0. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO CLAIMS RELATED TO THIRD PARTY SOFTWARE AND ITS OWNERS AND PROVIDERS.
9. Indemnification – Partner 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 Partner contained in these Terms, (2) any breach or violation of any covenant or other obligation or duty of Partner under these Terms or under applicable law, and (3) any violations of any applicable privacy laws caused by errors or omissions of Partner. CARET shall fully indemnify, hold harmless and defend Partner and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates (collectively “Partner 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 the PMP infringes on the intellectual property rights of a third party, except where Partner’s conduct is the cause of the alleged infringement.
10. 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.
These Terms, use of the PMP, 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. Partner 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.
11. Prevailing Party – In the event of any litigation arising out of or related to Partner’s use of the PMP or these Terms, 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.
12. Updates/Changes to Services and Terms – Due to changes in technology and the marketplace, CARET may make modifications to the PMP 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 Warranty, and Partner agrees that CARET will not be liable to Partner for any such modifications. Likewise, CARET reserves the right to routinely update, amend or change these Terms.
13. Export Control – The PMP is subject to U.S. and foreign export control laws. Partner shall not ship, transfer, export or re-export CARET 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.
14. Affiliates – CARET’s Affiliates may include subsidiaries, subcontractors, and sub processors. CARET may subcontract any work under these Terms and Conditions to any third party or Affiliate without Partner’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.
