9. 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.
10. Client Data – Any information, including but not limited to data belonging to Client or any third-party 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 hereby grants CARET permission during the Term of Client’s CARET Software Subscription to: (1) access Client Data for the purposes of fulfilling any contractual obligations CARET has with Client; and (2) to compile Client Data in an anonymized form (“Aggregated Data”). CARET may use such Aggregated Data for purposes of operating CARET’s business, monitoring performance of the software, and/or improving the software. CARET’s use of Aggregated Data as described in this section shall not result in any unauthorized disclosure of Client Data, Client Confidential Information, or personally identifiable information of Authorized Users. Aggregated Data will not be capable of re-identification. All Aggregated Data shall be owned by CARET and nothing herein shall be construed as prohibiting CARET from using Aggregated Data for business and/or operational purposes. The process of collecting and storing Aggregated Data will be conducted in a manner that will maintain the confidential nature of the Client Data itself. 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. Client’s data will be permanently deleted from all CARET and CARET Affiliate servers, cloud instances, or other potential storage space thirty (30) days after the expiration of Client’s CARET Software Subscription.
11. 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.
12. 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.
13. 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 THIRTY (30) 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 PRICE INCREASE WHICH CARET WILL NOTIFY CLIENT OF AT LEAST FORTY-FIVE (45) DAYS PRIOR TO THE END OF THE TERM.
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 17 BELOW.
14. 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.
15. 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.
16. 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”).
17. 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.
18. 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.
19. 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.
20. 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 hello@getcaret.com and terms@getcaret.com.
21. 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.
22. 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.
23. 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.
24. Assignment – Client shall not directly or indirectly assign, transfer, convey, pledge, encumber, or otherwise dispose of any rights or obligations under this Agreement 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 this Agreement 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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 https://caretlegal.com/terms-of-service/. Client’s continued use of the Services after the 30 days will serve as consent to the changed terms.
31. 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.
32. Data Processing Addendum; Privacy Policy – The Data Processing Addendum set forth at getcaret.com/data-processing-addendum and the Privacy Policy set forth at https://www.getcaret.com/privacy-policy are expressly incorporated into these Terms by reference.
33. 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.
34. 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.
35. 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.
